High Court
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10746 of 2022 Applicant :- Kishan @ Kishanlal Opposite Party :- State of U.P. Counsel for Applicant :- Bharat Singh Counsel for Opposite Party :- G.A.,Manish Pandey Hon'ble Saurabh Shyam Shamshery,J. 1. Heard Sri Bharat Singh, learned counsel for applicant, Sri K.P. Pathak,
Legal Reasoning
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). 7. In the backdrop of above discussion on law and submissions made by learned counsel for parties, in the present case name of applicant was disclosed in the FIR on the basis of suspicion. During investigation it was found that deceased went to meet the applicant. His body was recovered on the pointing out of one, Bhikam Singh, who confessed the crime and active involvement of applicant. T- shirt and Pant of deceased was recovered on the pointing out of applicant as well as ID proof of applicant was also found at the place of occurrence, which shows that applicant was actively involved in the offence. There was a motive also as the applicant has not returned back Rs. 7 lacs which was taken as loan from deceased. 8. In view of above and considering the nature of evidence which indicates active involvement of applicant not only in causing death of deceased but disposing his dead body also, therefore, no case of bail is made out. 9. The application is accordingly rejected. Order Date :- 13.5.2022 AK Digitally signed by AWADESH KUMAR Date: 2022.05.17 16:40:44 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
learned A.G.A. for State and Sri Manish Pandey, Advocate for Informant. 2. Applicant-Kishan alias Kishanlal, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 18.02.2022, passed by Sessions Judge, Sambhat at Chandausi, in Case Crime No.255 of 2021, under Sections 364, 302, 201 IPC, Police Station Chandausi, District Sambhal. 3. Wife of deceased initially lodged a FIR under Section 364 IPC against applicant son of Khachedu that her husband went alongwith one Kisanpal son of Shaligram in order to meet applicant on 18.05.2021 and did not return back. She suspected that her husband was murdered by applicant. 4. Learned counsel for applicant submits that during investigation the statement of Kisanpal son of Shaligram was recorded that after taking dinner and drinks he dropped deceased near Maulagarh Ki Puliya where he supposed to meet with applicant. The applicant was arrested on 28.05.2021. However, he does not make any confessional statement. Learned counsel further submits that during investigation CDR details were investigated wherein a number was found to be suspicious which was recorded in the name of Bhikam Singh son of Girdhari Singh. He was arrested and made a confessional statement and on his pointing out a skeleton and one quilt was recovered on 05.06.2021. Body was identified on the basis of said recovered quilt. Learned counsel further submits that post mortem was conducted, however caused of death was not determined. Later on driving licence and Aadhar Card of applicant was found near the place where skeleton was recovered alongwith other materials. Learned counsel submits that there was a delay of two days in lodging of FIR which remained unexplained. Name of applicant was disclosed in the confessional statement. False recovery was shown on the point out of applicant of country made pistol and one T-shirt and Pant allegedly belongs to deceased. There was no eye witness for the alleged incident as well as there was no motive for applicant to commit the crime in question. 5. Per contra, learned A.G.A. and learned counsel appearing for Informant, submit that according to prosecution story the deceased went to meet applicant on the night of the day when alleged incident took place. Body was identified by the pointing out of accused, Bhikam Singh, who confessed the crime that deceased was murdered by applicant with the help of Bhikam Singh. The body was identified by quilt. Certain incriminating materials were found near the place of occurrence which connect the applicant in the offence. 6. 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).