Allahabad High Court
Baldev Gaud vs State Of U.P. on 24 November, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24421 of 2022
Applicant :- Baldev Gaud
Opposite Party :- State of U.P.
Counsel for Applicant :- Piyush Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Counter affidavit filed today in Court by learned AGA is taken on record.
1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No.75 of 2021, under Section 302 IPC, registered at Police Station Babhani, District Sonbhadra.
3. FIR which has been filed against unknown person indicates that the incident has taken place in the intervening night of 1/2.08.2021 when the informant received intimation from his younger brother that a lot of disturbance was taking place in the house of Shiv Kumar, another brother of the informant. It is stated that upon reaching the house, the informant saw Shiv Kumar in a grievously injured state with his wife lying dead. Subsequently, Shiv Kumar also passed away in the hospital. Suspicion has been cast upon unidentified person.
4. Learned counsel for applicant submits that the applicant has been apprehended only on the basis of statement of alleged eye witness Chandrawati daughter of Shiv Kumar who in her statement recorded under section 161 Cr.P.C has stated that the murder was done by co-accused Indra Dev Gaud, brother of applicant while the role of applicant is indicated as merely being present at that time. It is submitted that the statement of alleged eye witness has been recorded after a delay of two days without any cogent explanation for same particularly once the applicant were allegedly identified by the eye witness account and yet FIR has been lodged against unidentified person which clearly indicates false implication of applicant who is in jail since 05.08.2021 with evidence not yet having commenced.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that applicant has been clearly identified by eye witness being present at the time of incident.
6. 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."
7. Considering the submissions advanced by learned counsel for parties and upon perusal of material available on record, it appears that the FIR has been lodged against unidentified person. There is no dying declaration on record. Statement of alleged eye witness who is daughter of the deceased and is aged about 19 years has been recorded after two days delay without any cogent explanation for same. There does not appear to be any recovery from the applicant who is in jail since 05.08.2021 and the trial at its very inception. Even as per statement of alleged eye witness, the role of causing the twin murders has been levelled on co-accused Indra Dev Gaud whose case would be distinct from that of applicant.
8. 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.
9. Accordingly bail application is allowed.
10. Let applicant, Baldev Gaud, 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 :- 24.11.2022
Subodh/-
