Allahabad High Court
Kanchid vs State Of U.P. on 1 February, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 28.01.2023 Delivered on 01.02.2023 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55656 of 2022 Applicant :- Kanchid Opposite Party :- State of U.P. Counsel for Applicant :- Krishna Kant Dubey,Raghuvansh Misra,Santosh Kumar Dubey Counsel for Opposite Party :- G.A.,Uttar Kumar Goswami Hon'ble Siddharth,J.
Heard Sri Krishna Kant Dubey and Sri Raghuvansh Misra, learned counsels for the applicant; Sri Shiv Kumar Singh, learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Kanchid, with a prayer to release him on bail in Case Crime No. 102 of 2022, under Sections 306, 506 IPC, Police Station Ahar, District- Bulandsahar, during pendency of trial.
There is allegation in the FIR against six persons including the applicant that on 13.8.2022 an incident of rape against daughter of the informant aged about 15 years took place, which was caused by Pushpendra, s/o Gulab and Shivam, s/o Vinod. Pushpendra is in jail and Shivam is absconding. Today, i.e., 20.8.2022 at about 9:00 a.m. co-accused, Bholu Pradhan, Raj Kumar, Pawan and Gaurav came to the house of the informant and took his son, Satendra, stating that they want to talk about the compromise in the case of Priti and his son went with them. Thereafter his son did not returned and his dead body was found in the grove of mango of Kanti Prasad Lodhi. It was alleged that the applicant and co-accused, Durgesh, are also involved in the incident.
Learned counsel for the applicant has submitted that in the FIR there is no allegation against the applicant that he took the son of the informant from his house. The witnesses have also not named the applicant. There is no recovery of any incriminating material from the applicant. The doctor has found that the death of the son of the informant was the result of suicide. Charge-sheet has not been submitted against him. The earlier implication under Section 302, 147 and 506 IPC was controverted into Section 306 IPC. The ingredients for constituting offence under Section 306 IPC are not made out against the applicant. The applicant is suffering from paralysis and cannot walk. He has further pointed that the bail application of co-accused, Pawan, has already been rejected by this Court vide Criminal Misc. Bail Application No.57262 of 2022. Learned counsel for the applicant has submitted that the role of the applicant is different as compared to co-accused, Pawan, whose bail application has been rejected by this Court. In the FIR itself it has been stated that the deceased was called from his house by the four co-accused persons, which included, Pawan. The applicant was not assigned the role of taking the deceased alongwith him. He has further submitted that only allegation against co-accused, Durgesh and the applicant is that they had extended threat to the son of the informant two days ago and they are also involved in his murder. The learned counsel for the applicant submits that the allegation of murder has not been found to be correct. It is a case of suicide. Therefore the allegation against the applicant is ill-founded. He has no concern with the case of rape of Priti regarding which compromise was to be taken place and on its pretext, son of the informant was taken for compromise. He has submitted that the applicant has been falsely implicated in this case. He is in jail since 12.10.2022 and has criminal history of three cases explained in supplementary affidavit. One case is under the Electricity Act and two cases are of theft.
Learned counsel for the informant and learned AGA have vehemently opposed the bail application of the applicant. Learned counsel for the informant has submitted that allegations against the applicant are quite serious and the report of the doctor stating that the deceased committed suicide by way of hanging and was not strangulated is not correct. It has been submitted that son of the informant was done to death by the applicant and other co-accused persons. The applicant has criminal antecedents. Hence he is not entitled to be enlarged on bail.
After hearing the rival contentions, this Court finds that neither the applicant was involved in the rape case of Priti nor he is alleged to have taken the deceased with him. There is allegation against him that he had threatened the son of the informant two days prior to the alleged incident. Deceased committed suicide and was not found to be murdered. There is no allegation against the applicant of abetment of suicide as Section 306 and 107 IPC.
Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid 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 that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 01.02.2023 Ruchi Agrahari