High Court
Case Details
Neutral Citation No. - 2023:AHC:121421 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10155 of 2023 Applicant :- Kamla Shankar Vishwakarma Opposite Party :- State of U.P. Counsel for Applicant :- Sudhir Kumar Agarwal,Sarvendra Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J. Applicant- Kamla Shankar Vishwakarma has approached this Court for bail in Case Crime No. 342 of 2022 under Sections 323, 504, 304 I.P.C., Police Station- Manda, District- Prayagraj. In the present case, it is alleged that applicant, his wife and his brother have assaulted their real brother who died after about six days. According to post mortem report, immediate cause of death was septicaemia due to infection in both lung associated with coma.
Legal Reasoning
(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) In the present case, applicant is real brother of deceased. It appears that there was some altercation between children of relatives and for that applicant along with his wife and other brother came and assaulted husband of informant who succumbed to injuries after six days. Learned A.G.A. has not able to show statement of any witness except informant and therefore, version of accused side that it may be a case of sudden provocation cannot be ruled out at this stage. In addition to above factor, following factor also goes in favour of applicant for purpose of granting bail i.e., no prompt F.I.R. was lodged by informant, injured survived for about six days, no independent witness was examined as well as prosecution has failed to bring on record any document in regard to treatment of injured and in these circumstances, there is substance in argument of learned counsel for applicant that in case of conviction, it may not travel beyond offence under Section 304 part-II I.P.C. Therefore, applicant has made out a case for bail. Let the applicant- Kamla Shankar Vishwakarma 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. (v) Applicant has to appear on each and every date before learned trial Court and any application for exemption of his appearance on vague ground could be a ground for cancellation of bail by learned trial Court immediately. 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. The bail application is allowed. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application. Order Date :- 30.5.2023 Nirmal Sinha Digitally signed by :- NIRMAL SINHA High Court of Judicature at Allahabad
Arguments
Sri Sudhir Kumar Agarwal, learned counsel for applicant submits that -: (i) alleged occurrence of assault had taken place on 14.12.2022, however, no prompt complaint was lodged; (ii) injured remained admitted in hospital but no document has been placed on record that he was admitted as an accidental or otherwise; (iii) co-accused (wife of applicant) has already been granted anticipatory bail by this Court. (iv) learned counsel refers contents of para 12 of paper book that :- “deceased was sitting at his doorsteps, in the meantime two groups of children who were playing there, started quarreling with each other and they threw stones to each other and the deceased prevented them in which the deceased received injury in stone pelting by the children”. (v) he further submits that it was a case of sudden quarrel and even in the case of conviction, it will not travel beyond an offence under Section 304 Part-II I.P.C., therefore, applicant, who is in jail since 11.01.2023 may be released on bail during trial. Sri Sunil Srivastava, learned AGA appearing for State submits that deceased has suffered grievous injuries on temporal and parital region, right and left side of skull; proposed defence cannot be considered at this stage. Learned A.G.A. further submits that informant is wife of deceased whereas two accused are real brothers of deceased, therefore, considering their close relation, the informant before taking a decision to lodge an F.I.R. may be hopeful that her husband may recover, however, when he succumbed to injuries, she was left with no other option but to lodge F.I.R. 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.