Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7655 of 2022 Applicant :- Pawan Kumar Soni@ Banti Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Balram Jee Verma,Faizan Siddiqui,Prabhakar Dwivedi Counsel for Opposite Party :- G.A.,Gaurav Kumar Shukla Hon'ble Manish Mathur,J.
Legal Reasoning
7. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that applicant is named neither in the F.I.R. nor in the statement under Section 161 Cr.P.C. and has been introduced in statement under Section 164 Cr.P.C. A perusal of both the statements of prosecutrix under Sections 161 and 164 Cr.P.C. indicate the same narration of incident in quite detail with only difference being the introduction of applicant's name in statement under Section 164 Cr.P.C. It is also relevant that in her statement under Section 161 Cr.P.C., the applicant has indicated previous enmity between her family and that of co-accused Radha with whom the applicant is said to have inflicted injuries upon the prosecurix. The aspect that the prosecutrix was subsequently also attacked leading to filing of Case Crime No.206 on 06.09.2022 may not have a bearing in the present matter since the applicant is not named in the said F.I.R. and even otherwise her statement under Section 164 Cr.P.C. was recorded much prior to that date on 05.10.2021. The applicant is in jail since 16.11.2021 with trial yet to be commenced. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case. 8. Accordingly bail application is allowed. 9. Let applicant Pawan Kumar Soni@ Banti, 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 :- 17.11.2022 kvg/- Digitally signed by GIREESAN KV Date: 2022.11.17 13:44:28 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, learned counsel for informant and perused the record. 2. This first bail application has been filed with regard to Case Crime No.208 of 2021 under Sections 323, 504, 506, 324, 354, 376DA, 307 I.P.C., 5/6 Protection of Children from Sexual Offences Act, P.S.Kaptangaj, District Basti. 3. As per contents of first information report, the incident is said to have occurred in the intervening night of 10/11.09.2021 when the informant's sister was found in an unconscious and injured state. FIR has been filed against unknown persons and applicant has been apprehended on the basis of statement of prosecutrix under Section 164 Cr.P.C. 4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him on account of previous enmity as is admitted by the prosecutrix in her statements recorded under Sections 161 and 164 Cr.P.C. It has been further submitted that there is serious contradiction in the statements of prosecutrix in both the Sections since the entire narration of events being virtually the same in the statements recorded under both the Sections, the applicant's name has been introduced only in statement under Section 164 Cr.P.C. and indicates tutoring. It is submitted that the applicant is in jail since 16.11.2021 with only charge sheet having been filed. 5. Learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant have opposed the bail application with submission that F.I.R. was lodged at a time when the prosecutrix was unconscious and was unable to give any statement and even statement under Section 161 Cr.P.C. was recorded at the time when she was admitted in the hospital. It is submitted that as many as 23 injuries are indicated upon body of the prosecutrix including stab and incised wounds. It is further submitted that it was only when the prosecutrix was conscious enough that she gave her statement under Section 164 Cr.P.C. in which she has specifically assigned role to the applicant. Learned counsel for informant has further submitted that subsequently the prosecutrix was again attacked on 06.09.2022 in order to prevent her from giving a statement. 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."