Allahabad High Court
Babu vs State Of U.P. on 2 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19928 of 2018
Applicant :- Babu
Opposite Party :- State of U.P.
Counsel for Applicant :- Ram Babu Sharma,Ajay Kumar Pathak,Akash Deep Srivastava,Ardhendu Shekhar Sharma,Inder Pal Singh Tomar,Indra Pal Singh Tomar,Parvez Alam
Counsel for Opposite Party :- G.A.,Rajiv Tiwari
Hon'ble Manish Mathur,J.
1. Heard Mr. Akash Deep Srivastava, learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State as well as learned counsel appearing for informant and perused the record.
2. This second bail application has been filed with regard to Case Crime No.37 of 2012, under Sections 302/34 IPC, registered at Police Station Tappal, District Aligarh. First bail application was rejected vide order dated 27.10.2017 passed in Criminal Misc. Bail Application No.25681 of 2017 by his Lordship Hon'ble Justice Vinod Kumar Misra, who has subsequently demitted office and as such the second bail application has been listed before this Court as per roster.
3. As per contents of FIR, the incident is said to have taken place on 26.01.2012 when the informant's brother Dinu received a phone call indicating that a compromise had been effected between the informant's family and the nominated persons with regard to an incident which had taken place three months prior. On receiving information, the said Dinu alongwith informant are said to have reached specified place where the accused are said to have attacked him. Specific role of firing upon the said Dinu has been nominated upon the applicant due to which the said Dinu passed away.
4. Learned counsel for applicant submits that the first bail application had been rejected on the basis of allegations levelled in the FIR that the role of firing had been assigned to the present applicant as well as the fact that he did not surrender before the trial court within the time stipulated with regard to another matter.
5. Learned counsel for applicant submit that after rejection of the first bail application, the statement of witnesses of fact including that of the informant have been recorded as P.W.1, P.W. 2 and P.W. 3 and none of the said prosecution witnesses have supported the prosecution version due to which they were declared hostile. Certified copies of the deposition has been brought on record by means of supplementary affidavit dated 16.07.2021. It is submitted that the applicant is in jail since 08.04.2017 and since now all the witnesses of fact have been declared hostile, there is no cogent evidence against the applicant.
6. Learned Additional Government Advocate appearing on behalf of State and learned counsel for informant have opposed the bail application with the submission that evidence of eight persons have already been completed whereafter statement under section 313 Cr.P.C. have also been recorded and as such there is no occasion now to consider the bail application. However, it is not denied that the witnesses of fact have been declared hostile.
7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
8. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that the first bail application had been rejected only on the basis of averments made in the FIR whereby specific role of firing has been assigned to the applicant as well as the fact that despite specific orders of this Court, the applicant did not surrender before the trial court within the stipulated time period.
9.After rejection of the first bail application, during course of trial, none of the main witnesses of fact including the informant as P.W1, P.W2, P.W. 3 and P.W.4 have supported the prosecution story and have been declared hostile. Certified copies of deposition have been brought on record by means of supplementary affidavit as indicated hereinabove. Considering the said facts as well as the fact that applicant is said to be in jail since 8.04.2017, as yet there does not appear to be any cogent evidence against the applicant. The aspect of statement being recorded under section 313 Cr.P.C. in the considered opinion of this Court would not have any material bearing at the stage of consideration of bail application particularly when all the witnesses of fact have been declared hostile.
10. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
11. Accordingly bail application is allowed.
12. Let applicant, Babu, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 2.11.2022
Subodh/-
