High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25571 of 2020 Applicant :- Malkhey Opposite Party :- State of U.P. Counsel for Applicant :- Rajesh Kumar Singh,Devendra Singh,Ram Sharan Giri,Sandeep Kumar Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.
Legal Reasoning
the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case. 9. Accordingly bail application is allowed. 10. Let applicant Malkhey 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 :- 3.12.2022 Prabhat Digitally signed by PRABHAT KUMAR Date: 2022.12.03 13:47:04 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 and perused the record. 2. This first bail application has been filed with regard to Case Crime No. 17 of 2020 under Section 302, 201 IPC, P.S. Jaspura, District Banda. 3. As per contents of FIR, the incident is said to have taken place on 24th February, 2020 at about 7.00 P.M. when the informant's husband came to the house wearing headgear belonging to the applicant. It is stated that subsequently the husband received a phone call whereafter he left the house but did not return. His dead body was subsequently discovered on 25th February, 2020 hanging in the bathroom by the same headgear. It is also stated that the body was on its knees. 4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him. Attention has been drawn to the fact that post mortem report does not corroborate allegations made in the F.I.R. particularly since there is no other anti mortem injury on the body of deceased except for an interrupted ligature mark around the neck. Hyoid bone is also found intact although as per F.I.R. the body was found hanging but on its knees on the floor. It is submitted that except for suspicion being caused upon the applicant, there is no direct or even circumstantial evidence against the applicant at this stage. Although he is under incarceration since 3rd March, 2020 with trial only at the inception. 5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that the applicant has been taken into custody on the basis of statement of villagers indicating financial dispute between him and the deceased. It is submitted that headgear of the applicant was used in the hanging of the deceased. 6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that although allegations of body being found hanging in the bath room with its knees touching the floor have been indicated in the F.I.R. as well as in the statement of informant under Section 161 Cr.P.C. but the same do not appear to be corroborated by the post mortem report. Applicant appears to have been named in the F.I.R. also on the basis of suspicion. At this stage, except for suspicion being cast upon the applicant, there does not appear to be any credible evidence against the applicant who is in jail since 3rd March, 2020 as an under trial with trial only at the inception. 7. 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." 8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with