High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42491 of 2022 Applicant :- Chandra Pratap Singh Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Kumar Sharma,Atul Sharma Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.
Legal Reasoning
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.188-A of 1984, under Sections 147, 148, 436, 302, 323 I.P.C., P.S. Panki, District Kanpur Nagar. 3. First information report has been lodged on 01.11.1984 with the allegations that a mob of about 200 people entered and attacked the informant and her family members due to which her husband was burned alive and subsequently succumbed to the injuries. 4. Learned counsel for applicant submits that the incident is about 38 years' old and F.I.R. has been registered as a result of riots following assassination of the then Prime Minister of India. It is submitted that subsequently an Enquiry Commission under Chairmanship of Hon'ble Mr. Justice Ranganath Misra also enquired into the issue whereafter as per directions and investigation, final report was submitted but subsequently on 23.01.2020 further investigation was carried out by the Special Investigation Team and charge sheet has been filed in which one Paramjeet Singh and sister Gurpreet Kaur, children of deceased have been shown as eye witness account indicating the applicant being a member of the mob. 5. Learned counsel for applicant submits that original informant has already passed away in year 2004. It has been further submitted that even during the course of investigation overseen by the Enquiry Commission, informant had submitted an affidavit on 14.11.1985 indicating One Chandra Pratap Bhadauria, resident of MIG-65, B-Block, Panki, Kanpur as being one of the persons who was identified for having carried out attack upon the deceased. Learned counsel for the applicant submits that the applicant has been apprehended in a case of mistaken identity due to the fact that he is of the same name but drawn attention to the fact that allotment of the said residence as indicated in the affidavit was made for the first time by the Kanpur Development Authority in the year 1988 in favour of one Mahesh Singh who had taken possession of the flat only on 11.01.1988 as per the transfer certificate, annexed as Annexure-5 to the Bail Application. It is submitted that the applicant's wife thereafter purchased the said property from the said person only in the year 2003 and as such the case of mistaken identity is clearly made out. Attention has also been drawn to the statement of police constable concerned to indicate that original records are not available in the police station. Attention has also been drawn to the report dated 07.09.2021 issued by the police station concerned to indicate that the informant has already passed away and original records in the matter have already been weeded out. The report also states that the eye witness to the incident Bhola Nath refused to identify the applicant as being present at the time of incident but the applicant has been apprehended only on the basis of statement made by Paramjeet Singh, son of the deceased that too after 37 years in the year 2021. It is further submitted that even in his deposition, Paramjeet Singh has not indicated himself to be an eye witness of the incident, a fact which is corroborated by the statement of his sister Gurpreet Kaur. 6. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with submission that the applicant has been apprehended on the basis of identification made by informant before the Enquiry Commission in which she has positively indicated name of applicant and the same is also corroborated by evidence of her son. 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. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, it appears that the matter pertaining to about 38 years ago and was enquired into by the Enquiry Commission specifically set up for the said purpose. It also appears that after investigation, a final report had been submitted against which no protest application was filed and charge sheet has been submitted in pursuance to further investigation made under Section 173(8) Cr.P.C. on the directions of Special Investigation Team only on 31.07.2022. It also appears from the record that original informant had passed away in the meantime and applicant has been apprehended on the basis of statement of her son, Paramjeet Singh. However, it also appears that the statement of Paramjeet Singh has been recorded after 37 years of the incident and he neither identified nor gave any affidavit before the Enquiry Commission. The address indicated in the affidavit given before the Enquiry Commission in the year 1984 does not find corroboration with the allotment of the premises made in the year 1988 and its subsequent purchase by wife of applicant in the year 2003 which may create a doubt with regard to identity of the applicant as a participant in the incident. 9. At this stage and subject to further evidence being led in trial, police reports are also on record indicating the fact that the original records pertaining to the incident has already been weeded out and the original postmortem report of the deceased has also been destroyed by termites as per statement of the Chief Medical Officer recorded under Section 161 Cr. P.C. on 08.03.2021. It has also been submitted that now the applicant is aged about 67 years and has been taken into custody only on the basis of statement of Paramjeet Singh and charges are yet to be framed. As such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case. 10. Accordingly bail application is allowed. 11. Let applicant Chandra Pratap Singh, 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 :- 23.9.2022 kvg/- Digitally signed by GIREESAN KV Date: 2022.09.28 14:22:19 IST Reason: Location: High Court of Judicature at Allahabad