Mohd Umar vs State Of U.P.
2023 Latest Caselaw 16675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:116779
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12074 of 2023
 

 
Applicant :- Mohd Umar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Farid Ahmad
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Farid Ahmad, learned counsel for applicant and Sri Markandey Singh, learned Brief Holder for State.

2. Applicant-Mohd. Umar has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 316 of 2022, under Section 304 IPC, Police Station Chandausi, District Sambhal, after rejection of his bail application vide order dated 20.02.2023 passed by Sessions Judge, Sambhal at Chandausi.

3. Informant is son of deceased, who lodged prompt FIR against co-accused, Noori that about 09.00 PM when deceased has intervened in a scuffle going on between children, named accused came and pushed him due to which deceased fell down and died. According to post mortem report immediate cause of death could not be ascertained, therefore, Viscera was preserved though deceased has received two lacerated wounds, one on left side of scapula region and other on left lower part of leg.

4. Learned counsel for applicant submits that present applicant was not named in FIR which was lodged by son of deceased and his name came into light subsequently when another son of deceased made an application before concerned Police Station and according to his version he was one of the eye witness. He has also named three other eye witnesses of occurrence. Learned counsel submits that name of applicant was not disclosed promptly, therefore, it appears to be a case of false implication. He also submits that named co-accused has already been granted bail by a Coordinate Bench of this Court vide order dated 13.04.2023 though he fairly admits that reason given in bail order are not in terms of the judgments passed by Supreme Court in Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501 and Brijmani Devi vs. Pappu Kumar (2022) 4 SCC 497. Lastly, it is submitted that considering the evidence on record in case of conviction offence may not travel beyond Section 304 Part II IPC.

5. Learned Brief Holder appearing for State opposed the prayer for bail and submits that there are four eye witnesses account who fixed presence of applicant and co-accused at the place of occurrence and specific role that they pushed deceased when he had intervened the scuffle going on between children. However, it is not denied that similarly situated co-accused has already been granted bail.

6. LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

7. In the present case, applicant is related to deceased as his nephew. Evidence collected during investigation indicates that applicant was present alongwith co-accused at the place of occurrence and both of them pushed deceased, who fell down and died. According to post mortem report immediate cause of death remained uncertain, therefore, Viscera was preserved but report thereof is not placed on record. Similarly situated co-accused has already been granted bail. There is substance in argument of learned counsel for applicant that considering nature of evidence on record in the event of conviction the offence may not travel beyond Section 304 Part II IPC, therefore, applicant, who is in jail since 27.01.2023, has made out a case for bail.

8. However, applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately.

9. Let the applicant-Mohd. Umar 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 shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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.

(iii) 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 his 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 him, in accordance with law, under section 174-A I.P.C.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.

10. 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.

11. The bail application is allowed.

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

Order Date :- 25.5.2023

AK