Roopshree vs State Of U.P.
2023 Latest Caselaw 2749 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 81
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46322 of 2021
 

 
Applicant :- Roopshree
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Raj Kumar Mishra,Anup Kumar Pandey
 
Counsel for Opposite Party :- G.A.,Sanjay Mishra
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Anoop Kumar Pandey, learned counsel for applicant and learned A.G.A. for State.

2. Applicant-Roopshree, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of her Bail Application vide order dated 01.10.2021, passed by Sessions Judge, Etawah, in Case Crime No.359 of 2021, under Sections 304, 323, 504 I.P.C., Police Station Jaswant Nagar, District Etawah.

3. Learned counsel for applicant submits that applicant is a lady, aged about 50-55 years. According to allegations made in FIR as well as statements recorded during investigation it appears that on raising alarm by applicant other family members came and started assaulting deceased, who succumbed to injuries. Learned counsel further submits that there is no specific allegation of overact except shouting on applicant and there is no recovery of any weapon allegedly used in occurrence either from pointing out of applicant or from her possession. Learned counsel also placed reliance on a judgment passed by Supreme Court in Union of India vs. K.A. Najeeb (2021) 3 SCC 713 that there is overcrowding in jail and undertrials be released on bail if they are not suffering from serious allegations and there is least likelihood of interference with trial or making influence on witnesses. It is also submitted that applicant has no criminal history and she is languishing in jail since 24.08.2021 and in case, she is released on bail, she will not misuse the liberty of bail and will cooperate in trial.

4. The above submissions are vehemently opposed by learned A.G.A. He submits that applicant was named accused and statement of brother of deceased has specified role of applicant also of causing hurt. There were as many as seven injuries and cause of death was shock and haemorrhage due to ante mortem injuries.

5. LAW ON BAIL

A. ?The basic rule may perhaps be tersely put as bail, not jail? (State Of Rajasthan, Jaipur vs Balchand @ Baliay : (1977 AIR 2447, 1978 SCR (1) 535). Power to grant bail under Section 439 of CrPC, is of wide amplitude. The court is bestowed with considerable but not unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course and not in whimsical manner. (see Ram Govind Upadhyay Vs Sudarshan Singh :(2002) 3 SCC 598 and Neeru Yadav Vs State of U.P.:(2016)15 SCC 422).

B. ?The considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.? [Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118)]. ?There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, inter-alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused? [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21]. In Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89 Supreme Court has observed that, ?when the Accused were charged for the offences punishable under Section 149 of the Indian Penal Code also and when their presence has been established and it is stated that they were part of the unlawful assembly, the individual role and/or overt act by the individual Accused is not significant and/or relevant.?

C. ?....It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.? (Prahlad Singh Bhati vs. NCT of Delhi and Ors:( 2001) 4 SCC 280).

D. ?....It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment....? (Mahipal v. Rajesh Kumar, (2020) 2 SCC 118) and also (Ms. Y versus State of Rajasthan and Anr :2022 SCC OnLineSC 458).

E. ?....There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused.? (Manoj Kumar Khokhar (2022)3 SCC501).

6. In view of above discussion on law and submissions made by learned counsel for parties as well as that applicant is a lady, who is in jail since 24.08.2021; according to version of FIR and statements recorded during investigation, it appears that on raising alarm of applicant other co-accused persons came and assaulted deceased, who succumbed to injuries; during investigation no weapon was recovered either on pointing out of applicant or from her possession and also taking note of present status of trial and that there is least likelihood that applicant being a lady will influence trial or witness and also taking note of overcrowding in jail, this Court is of the view that a case of bail is made out.

7. Let the applicant-Roopshree be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the date 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure her presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against her, in accordance with law, under section 174-A I.P.C.

(v) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 her in accordance with law and the Trial Court may proceed against her under Section 229-A IPC.

(vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

8. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

9. The bail application is allowed.

10. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 27.1.2023

AK