High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30313 of 2018
Legal Reasoning
(A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. (B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. (C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 5. In the present case considering the relevant factors such as applicant is in jail for last seven years which is the minimum sentence in case he is convicted for offences under Section 304B IPC, unlikelihood of early conclusion of trial as till date out of 14 prosecution witnesses only 6 witnesses are examined and that co-accused have been granted bail. The applicant's bail application cannot be rejected only on ground of he being husband of deceased. Therefore, bail application is allowed. 6. Let the applicant Mohd. Rafi @ Guddu, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (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 will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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. (iv) 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. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229- A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. 7. 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. 8. The bail application is allowed. 9. The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad. 10.The computer generated copy of such order shall be self attested by the counsel of the party concerned. 11. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 12. The observations made hereinabove are only for the purpose of adjudicating the present bail application. Order Date :- 31.3.2022 P Kesari Digitally signed by PRACHI KESARWANI Date: 2022.04.05 10:48:21 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Applicant :- Mohd. Rafi Alias Guddu Opposite Party :- State of U.P. Counsel for Applicant :- Syed Wajid Ali,Rupesh Srivastav,Santosh Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J. 1. Heard learned counsel for the applicant, learned AGA for the State and perused the record. 2. This is the second bail application filed on behalf of the applicant seeking enlargement on bail in Case Crime No.754 of 2014, under Sections 498-A, 304B of I.P.C. and Section 3/4 D.P. Act, Police Station-Izzat Nagar, District-Bareilly, after rejection of his Ist Bail Application non prosecution by this Court vide order dated 18.5.2018. 3. Learned counsel submits that in the present case the applicant is suffering only because he is the husband of the deceased and is facing trial since 2014. Co-accused have already been granted bail much earlier by this Court way back in the year 2018. Learned counsel for the applicant fairly submits that as the cause of death of the deceased could not be ascertained from postmortem report hence viscera was preserved and according to report aluminium phosphate was found. In trial out of 14 witnesses only 6 prosecution witnesses are recorded. The applicant has no other reported criminal antecedent and he is languishing in jail since 05.01.2015, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co- operate in the trial. 4. Learned A.G.A. has vehemently opposed the bail application however, he has not disputed that the that similarly situated co- accused have been granted bail.