Allahabad High Court
Hari Shankar vs State Of U.P. on 10 November, 2020
Equivalent citations: AIRONLINE 2020 ALL 2212
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22488 of 2020 Applicant :- Hari Shankar Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard learned counsel for applicant and learned A.G.A. for State.
2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail during trial in connection with Case Crime No.425 of 2019, under Sections 498A, 304B, 307 I.P.C. and 3/4 Dowry Prohibition Act, Police Station - Hathras Gate, District - Hathras, after bail rejection order dated 11.6.2020 passed by Sessions Judge, Hathras.
3.This Court, vide order dated 22.9.2020, has directed learned AGA to summon the complete case diary including videography said to be prepared in this matter.
4. In pursuance of aforesaid order, Shri Anupam Anand, Advocate brief holder for the State submits that he has received instructions that though the videography was conducted, however, C.D. prepared is damaged, and therefore, the same is not been placed today before this Court.
5. Shri S.N. Singh, learned counsel for the applicant submits that applicant is father-in-law of victim. Marriage was solemnized between deceased and his son in the year 2014. He further submits that there are two dying declaration, one was recorded on 29.12.2019 (one day after occurrence) wherein the allegations against applicant and his wife was of holding hand and the allegation of pouring oil and putting on fire was levelled against Nandoi. Second dying declaration which was recorded on 18.1.2019 though the allegation against applicant and his wife was remained same, however, allegation of pouring oil and putting on fire was levelled against husband and her Nanand. No allegation was levelled against Nandoi. Deceased died on 2.2.2019. It is further submitted that allegation against applicant, who is senior citizen, aged about 70 years, is highly improbable. Learned counsel lastly prayed that bail may be granted to the applicant as he is languishing in jail since 19.1.2020 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
6. Learned AGA has vehemently opposed the prayer for bail and submits that allegations levelled against applicant are consistent of holding the deceased, however, he has not denied the version in dying declaration, has been changed.
7. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person .At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
8. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that there is a change in the version of dying declaration and the applicant is senior citizen, aged about 70 years, this Court is of the view that a case of grant of bail is made out.
9. Let applicant - Hari Shankar 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 Court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.
iii) The applicant shall file an undertaking to the effect that 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.
iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure 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 her, in accordance with law, under Section 174-A I.P.C.
v) The applicant shall remain present, in person, before 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against her in accordance with law and Trial Court may proceed against her under Section 229-A IPC.
vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of applicant.
10. The identity, status and residential proof of sureties will be verified by Court concerned and in case of breach of any of the conditions mentioned above, Court concerned will be at liberty to cancel the bail and send the applicant to prison.
11. The bail application is allowed.
12. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
13. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
14. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 10.11.2020 Rishabh