Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43041 of 2022 Applicant :- Bhola Opposite Party :- State of U.P. Counsel for Applicant :- Abhishek Tripathi Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.
Legal Reasoning
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 pertains 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 in year 2022. 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 letter of the Chief Medical Officer dated 11.11.2019. It has also been submitted that now the applicant is aged about 72 years and has been taken into custody only on the basis of statements of certain persons claiming themselves to be eye witnesses but such statements have been recorded after more than 35 years of the incident and the injured witnesses do not appear to have named the applicant. 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 Bhola, 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 :- 10.10.2022 kvg/- Digitally signed by GIREESAN KV Date: 2022.10.15 16:17:08 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.0368 of 1984, under Sections 396, 436, 326 I.P.C., P.S. Kidwai Nagar, District Kanpur Nagar. 3. First information report has been lodged on 01.11.1984 with the allegations that a mob entered and attacked the informant's neighbour and his family members due to which two persons were 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 certain people have been shown as eye witness account indicating the applicant being a member of the mob. 5. Learned counsel for applicant has submitted that even as per the statements of eye and injured witnesses recorded, the name of applicant has not been taken as one of the members of the mob. It has been further submitted that even the informant and landlord of the house in question have not indicated presence of applicant at the time of incident. Applicant has been taken into custody only on the basis of statements of other persons who claim themselves to be eye witnesses and even otherwise have taken the name of one Bhola Paanwala and as such it is submitted that it is a case of mistaken identity since such implication has been made after more than 35 years of the incident. 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 eye witnesses before the Special Investigation Team in which they have positively indicated name of applicant. 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."