High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42267 of 2022 Applicant :- Rahul Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Subhash Chandra Tiwari Counsel for Opposite Party :- G.A.,Suresh Kumar Gupta Hon'ble Manish Mathur,J.
Legal Reasoning
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 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 Rahul Yadav 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 13:47:00 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. 164 of 2022 under Sections 302, 323, 506 IPC, P.S. Handia, District Prayagraj. 3. As per contents of FIR, the incident is said to have taken place on Ist April, 2022 when the minor son of informant aged about 10 years and his friend aged abut 11 years were allegedly thrown into pond by applicant and co-accused. It is alleged that when one Pawan Pandey sought to save the children, the applicant and co-accused attacked him in order to prevent rescue of the children. As a result both the children died due to drowning. 4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him only on account of previous enmity due to dispute over fishery rights. It is submitted that neither in the F.I.R nor even in the statement under Section 161 Cr.P.C. by the informant has any motive been attributed to the applicant for having caused death to both minors. It is submitted that although allegation of having caused injury to Pawan Pandey has been alleged but no medical examination of the said person was ever conducted to corroborate the allegations. Attention has also been drawn to the post mortem report indicating that there is no external injury seen on the body of deceased and although in the statement of Pawan Pandey, allegation of throttling have also been alleged but as per post mortem report, the hyoid bone is intact. Learned counsel for applicant submits that applicant is in jail since Ist April, 2022 with trial not yet having commenced and as per charge sheet, there are total 20 prosecution witnesses. 5. Learned A.G.A. appearing on behalf of State has opposed bail application with the submission that statement of informant and eye witness Pawan Pandey clearly corroborate the charges levelled against the applicant and make out a cognizable offence. 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 throwing the minor children into pond and attacking rescuer Pawan pandey have been alleged in the F.I.R. but no motive has been attributed to the applicant of having caused such an incident. Previous enmity owing to dispute over fishery rights have been alleged by applicant. Post mortem report does not appear to corroborate the charges levelled against the applicant. It is also noticeable that although applicant is said to have attacked the rescuer Pawan Pandey but no medical of the said person has been conducted as per case diary as informed by learned A.G.A. The applicant is in jail since Ist April, 2022 and as yet trial has not commenced although as per charge sheet, there are 20 prosecution witnesses and as such there is no hope of early conclusion of trial. 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