State v. Jeevan and others), now pending in the Court of Additional Sessions Judge, Co
Case Details
Court No. - 49 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41294 of 2022 Applicant :- Jeevan Opposite Party :- State of U.P. Counsel for Applicant :- Anand Priya Singh,Ajay Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Per contra, the learned A.G.A. has opposed the present application on bail. He submits that offence commenced by applicant is punishable under Section 304 I.P.C. As such, applicant can be awarded sentence which may extend to ten years. He therefore submits that no indulgence be granted by this Court in favour of applicant. Record shows that present application came up for order on 15.2.2023. Considering the submission urged by the learned counsel for applicant as noted hereinabove, a report was called from court below regarding the status of trial. In response to above, the Additional District and Sessions Judge, Court No. 1, Bareilly has submitted his report dated 23.3.2023, wherein it has been stated that no prosecution witness has yet been examined. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record coupled with the facts and circumstances of the case as noted hereinabove, applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Jeevan be released on bail in aforesaid case crime number 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 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. (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 IPC. (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., 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 HIS, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) 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. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 19.4.2023 Aiman Digitally signed by :- AIMAN FAROOQUI High Court of Judicature at Allahabad
Arguments
Heard Mr. Anand Priya Singh, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. This is a repeat application for bail filed by the applicant Jeevan seeking his enlargement on bail in Case Crime No. 269 of 2021, under Section 304 I.P.C., Police Station Cantt., District Bareilly during the pendency of trial i.e. Sessions Trial No. 554 of 2021 (State Vs. Jeevan and others), now pending in the Court of Additional Sessions Judge, Court No. 1, Bareilly. The first bail application of applicant was rejected by a detailed order dated 17.12.2021, which is reproduced hereinunder:- "Heard Mr. Dushyant Kumar, learned counsel for applicant and learned A.G.A. for State. Perused the record. This application for bail has been filed by applicant Jeevan, seeking his enlargement on bail in Case Crime No. 269 of 2021, under section 304 IPC, Police Station Cantt. District Bareilly during pendency of trial. Record shows that in respect of an incident which is alleged to have occurred on 17.7.2021, a delayed F.I.R. dated 18.7.2021 was lodged by first informant Shekhar and was registered as Case Crime No. 269 of 2021, under section 304 IPC, Police Station Cantt. District Bareilly. In the aforesaid F.IR. two persons namely, Nagina Devi (mother of first informant) and Jeevan (applicant herein) have been nominated as named accused. According to prosecution story as unfolded in F.I.R., it is alleged that Smt. Nagina mother of first informant developed illicit relation with Jeevan. Thereafter, Nagina Devi and Jeevan the named accused caused death of deceased Veerpal (father of first informant). Subsequent to aforesaid F.I.R dated 18.7.2021, post mortem of the body of the deceased was conducted on 17.7.2021. In the opinion of autopsy surgeon, cause of death of deceased was Fat Embole with multiple injury. Following ante-mortem injuries were found on the dead body of the deceased: (i) Abratted contusion 5cm x 2 cm present Rt. forehead 2 cm above (ii) Abratted contusion 7 cm x 3 cm presetn Lt. forehead with few. (iii) Abratted contusion 2cm x 2 cm external part Lt. Ear. (iv) Abratted contusion 12 cm x 4 cm present on the Lt. Arm. (v) Abratted contusion Both gluteal region 20 xm x 20 cm. (vi) Contusion 30 cm x 12 cm present Rt. Thigh with Rt knee point (vii) Multiple L.W. with contusion 12 cm x 4 cm (contusion 4cm) present on the Rt. leg 8 cm below Rt. Knee joint. (viii) Multiple L.W. with contusion 13 cm x 1 cm (contusion 6 cm) presetn on the Lt. leg 7 cm below Lt. Knee joint. (ix) Contusion 30 cm x 10 cm present on the Lt. Arm elbow forearm. (x) Contusion 10 x 5 cm present on the Rt chest. Investigating Officer during course of investigation has examined various witnesses under section 161 Cr.P.C. On the basis of material collected by Investigating Officer during course of Investigation, in terms of Chapter XII Cr.P.C. complicity of present applicant and Nagina Devi the named accused was found established in the crime in question. Accordingly investigating Officer submitted charge sheet dated 18.8.2021 whereby named accused Jeevan and Nagina Devi have been charge sheeted under section 304 IPC. Learned counsel for applicant submits that applicant is innocent. He has been falsely implicated in above mentioned case crime number. Applicant is in jail since 18.7.2021. Allegations made in F.I.R. are false and concocted. Upto this stage, there is no material to demonstrate abetment, instigation, or conspiracy either against applicant. There is no eye witness of the occurrence. No motive can be attached to applicant for committing the crime in question. In case, applicant is released on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.On the aforesaid premise, it is urged that applicant is liable to be enlarged on bail. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that F.I.R. has been lodged by Shekhar against his own mother and applicant Jeevan. Applicant is a charge-sheeted accused as such prima facise, complicity of applicant is established in the crime in question. Prosecution story as unfolded in F.I.R. is corroborated by statement of sister of first informant namely, Poonam as well as first informant. Vimal Patel is an eye-witness of the occurrence. His statements recorded under section 161 Cr.P.C. by Investigating Officer supports the prosecution story. He, therefore submits that applicant does not deserve any sympathy of this Court. In view of the facts as noted herein above, I do not find any good reason to grant indulgence in favour of present applicant. Accordingly, the bail application is liable to be rejected. It is accordingly rejected." Learned counsel for applicant submits that charges were framed against applicant vide framing of charge dated 9.12.2021. However inspite of the fact that the period of one years and four months has rolled by no prosecution witness has yet been adduced before court below. He, therefore, submits that there has been extreme delay in the conclusion of trial. However, the delay in the conclusion of the trial is not attributable to the applicant. It is then contended that right to speedy trial is fundamental right of an accused vide Abdul Rehman Antulay & Others Vs. R.S. Nayak & Another, 1992 (1) SCC 225. On the above premise, it is thus urged that aforesaid fundamental right of the applicant has been clearly infringed in the present case. As such, applicant is liable to be enlarged on bail.