Allahabad High Court
Naveen Bharti vs State Of U.P. on 19 October, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32931 of 2022
Applicant :- Naveen Bharti
Opposite Party :- State of U.P.
Counsel for Applicant :- Pawan Giri,Atharva Dixit,Jitendra Rana
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Rejoinder affidavit filed today in Court 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 S.T. No.47 of 2022, Case Crime No.366 of 2021, under Sections 302, 307, 504, 506, 34 IPC, registered at Police Station Chandausi, District Sambhal.
3. As per contents of FIR, the incident is said to have taken place on 23.07.2021 at about 09.00 P.M. when the applicant alongwith co-accused is said to have entered into an altercation with the husband of the informant and is said to have inflicted fire arm injury upon him due to which he succumbed to his injury.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account of neighbourly dispute. It is submitted that during course of trial, the main witnesses of fact as P.W.1, P.W.2 and P.W.3 have not supported the prosecution version and was therefore declared hostile. Attention has been drawn to certified copies of deposition of P.W.1, P.W.2 and P.W. 3 to substantiate the same. It is further submitted that although cause of death has been indicated in the post-mortem report as fire arm injury but the second bullet was not recovered nor as any ballistic report available with the charge-sheet. The applicant is in jail since 23.07.2021 and as yet the evidence of only four prosecution witnesses has been completed although there are a total of 19 prosecution witnesses.
5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that the post-mortem report clearly corroborates the allegations levelled in the FIR although does not dispute that all the witnesses of fact have been declared hostile.
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 submission advanced by learned counsel for parties and upon perusal of material available on record, it appears that although the main allegation of opening fire upon the deceased is upon the applicant but there does not appear to be any ballistic report on record. The record also reveals that the second bullet could not be recovered and even otherwise during course of trial, all the witnesses of fact as P.W. 1, P.W, 2 and P.W. 3 have been declared hostile and has not supported the prosecution version. The applicant is in jail since 23.07.2021 and as yet 15 prosecution witnesses remain to examine. It is clearly that there is no hope of any early conclusion of trial. Co-accused, namely, Praveen Bharti has already been enlarged on bail by Co-ordinate Bench of this Court passed in Criminal Misc. Bail Application No.44268 of 2021.
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, Naveen Bharti, 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 :- 19.10.2022
Subodh/-
