High Court
Case Details
Neutral Citation No. - 2023:AHC:195406 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37801 of 2023 Applicant :- Gudiya Devi Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Pandey Counsel for Opposite Party :- G.A.,Babu Lal Ram Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38824 of 2023 Applicant :- Surendra @ Sulendra Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Pandey Counsel for Opposite Party :- G.A.,Babu Lal Ram Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Ajay Pandey, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. Rejoinder affidavits filed by learned counsel for applicants in Court today are taken on record. These applications for bail have been filed by applicants Gudiya Devi and Surendra @ Sulendra, seeking their enlargement on bail in Case Crime No. 200 of 2023, under section 306 IPC, Police Station- Pipri, District- Kaushambi during the pendency of trial. Record shows that in respect of an incident which is alleged to have occurred on 2.7.2023, a prompt F.I.R. dated 2.7.2023 was lodged by first informant Dinesh Kumar and was registered as Case Crime No. 200 of 2023, under section 306 IPC, Police Station- Pipri, District- Kaushambi. In the aforesaid F.I.R., five persons namely, Raju pasi, Vijay Singh, Amar Singh, Surendra and Gudiya have been nominated as named accused. The gravamen of the allegation made in the F.I.R. is to the effect that on account of repeated pressure mounted upon deceased to enter into compromise in the pending litigation, the deceased committed suicide. Learned counsel for applicants submits that though the applicants are named as well as charge-sheeted accused inasmuch as Charge- sheet has already been submitted against applicants on 30.8.2023 yet they are liable to be enlarged on bail. According to learned counsel for applicants, an offence under section 306 IPC is subject to trial evidence. Moreover an offence under section 306 IPC has to be considered on a joint reading of section 107 and 306 IPC. However, upto this stage, it cannot be definitely concluded that applicants have abetted, instigated or conspired in the commission of alleged crime. There is nothing on record, from which it can be conclusively inferred that deceased committed suicide on account of an immediate act of applicant. No instigation exception can be inferred against the applicant from their conduct either. Even otherwise applicant- Gudiya Devi is a lady and therefore, she is entitled to the benefit of the provisions contained in proviso to section 437 Cr.P.C. Applicant- Gudiya Devi is a woman of clean antecedents in as much as she has no criminal history to her credit except the present one, whereas, Applicant- Surendra @ Sulendra has criminal history of one case i.e. an F.I.R. under section 376 Cr.P.C. However, applicant Surendra @ Sulendra has already been enlarged on bail in the previous criminal case. Both the applicants are in jail since 7.7.2023. As such, they have undergone more than three months of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicants during the course of trial. He, therefore submits that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has opposed the present applications for bail. He submits that since applicants are named as well as charge sheeted accused, therefore they do not deserve any indulgence by this Court. Role of applicants- Surendra @ Sulendra is clearly distinguishable from applicant- Gudiya Devi. In view of the facts of the case, it cannot be conclusively concluded that applicant- Surendra @ Sulendra has not abetted in the crime in question. He, therefore submits that no sympathy be shown by this Court in favour of applicants. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that applicant- Gudiya Devi is a lady, therefore she is entitled to the benefit of provisions contained in Section 437 Cr.P.C, an offence under section 306 IPC is subject to trial evidence. Moreover an offence under section 306 IPC has to be examined on a conjoint reading of Section 107 and 306 IPC, up to this stage, there is no material upto this stage to infer abatement, instigation, or conspiracy against applicant, undergone by applicants clean antecedents of applicant-Gudiya Devi and explained criminal history of applicant- Surendra @ Sulendra, period of incarceration, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, yet inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicants during pendency of trial, the judgement of this Court and Supreme Court in (i). Sarvesh Vs. State of U.P. 2018 ADJ Online 0163. (ii). Kanchan Sharma Vs. State of U.P. and Another 2021 SCC OnLine SC 737. (iii). Mirza Iqbal alias Golu and Another Vs. State of U.P. and Another 2021 SCC OnLine SC 1251. (iv). Mariano Anto Bruno and Another Vs. Inspector of Police 2022 SCC OnLine SC 1387. (v) Kashibai and Others Vs. State of Karnataka, 2023 SCC Online SC 575 therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present applications for bail, but without making any comment on the merits of the case, applicants have made out a case for bail. Accordingly, the bail applications are Allowed. Let the applicants- Gudiya Devi and Surendra @ Sulendra be released on bail in the aforesaid case crime number on 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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/her 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 :- 10.10.2023 Arshad Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad