Allahabad High Court
Pankaj vs State Of U.P. on 24 January, 2023
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49432 of 2022
Applicant :- Pankaj
Opposite Party :- State of U.P.
Counsel for Applicant :- Rajeev Kumar Pal,Vivek Dhaka
Counsel for Opposite Party :- G.A.,Sundeep Shukla
Hon'ble Dr. Gautam Chowdhary,J.
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, Sri Sundeep Shukla, learned counsel for the informant and perused the record.
2. This first bail application has been filed with regard to Case Crime No. 66 of 2022 under sections 147, 148, 149, 307, 302, 354, 323, 506 IPC, P.S. Hastinapur, District Meerut.
3. As per contents of FIR, the applicant along with co-accused allegedly attacked the family members of informant on 16th March, 2022 leading to death of informant's brother Gaurav.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. It is submitted that reading of the F.I.R. will make it apparent that only role assigned to the applicant is that of accompanying the co-accused. There is no allegation that he had any weapon in his hand or attacked any one. However the story had been sought to be improved in the statement of informant under Section 161 Cr.P.C. where the applicant is shown as carrying the weapon 'Balkati'. It is submitted that even otherwise, the aforesaid weapon does not corroborate with the fatal injury as indicated in the post mortem report and two persons i.e. the applicant and one Pankaj are alleged to be carrying the same weapon. As such it is submitted that only a general role has been assigned to the applicant even in the statement under section 161 Cr.P.C. The applicant is in jail since 19th March, 2022 and although charge sheet has been filled but trial has not yet commenced. The co-accused Kale alias Ankit, who has been assigned same role as to the applicant, has already been enlarged on bail vide order dated 20.09.2022 passed in Criminal Misc. Bail Application No. 28881 of 2022, copy of which is annexed as Annexure-6 to the affidavit accompanying the bail application.
5. Learned A.G.A. as well as learned counsel for the informant have opposed bail application with the submission that statement of informant under Section 161 Cr.P.C. clearly corroborates the post mortem report as well as the allegations levelled in the F.I.R.
6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that while in the F.I.R., no role has been assigned to the applicant of either carrying a weapon or of inflicting any injury upon any one, the said statement has been improved under Section 161 Cr.P.C. Even otherwise, it appears that two persons are shown to be carrying the same weapon and even then a general role has been allocated without any specific allegation being made upon the applicant. Previous criminal history of the applicant has been explained in the supplementary affidavit.
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. 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 Pankaj 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 :- 24.1.2023
S.Ali
