Allahabad High Court
Bhagwandas vs State Of U.P. And 3 Others on 14 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:140659 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30712 of 2023 Applicant :- Bhagwandas Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Krishna Gopal Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Krishna Gopal, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant-Bhagwandas seeking his enlargement on bail in Case Crime No.275 of 2022, under Sections 363, 304, 419, 420, 467, 468, 471, 34, 201, 120-B 201 IPC and Section 16/17 Pocso Act, Police Station Bithrichainpur, District Bareilly, during the pendency of trial.
At the very outset, the learned A.G.A. submits that notice of present bail application has been served upon the first informant-opposite party-4 on 07.07.2023. However, in spite of service of notice, no one has put in appearance on behalf of first informant-opposite party-4 to oppose the application for bail.
Record shows that in respect of an incident which is alleged to have occurred on 13.05.2022, a delayed F.I.R. dated 14.05.2022 was lodged by first informant, namely, Mahtab Ali (father of the Proecutrix), which was registered as Case Crime No.0275 of 2022, under Section 363 IPC, Police Station Bithrichainpur, District Bareilly. In the aforesaid F.I.R., three persons, namely, Shiva, Abhay and Anmol have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that on 13.05.2022 at about 3.30 AM, named accused Shiva enticed away the daughter of the first informant, namely, X aged about 17 years.
After aforementioned F.I.R. was lodged on 13.05.2022, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. During the course of investigation, it was discovered that the prosecutrix suddenly fell ill at platform nos.8/9 of Old Delhi railway station. Thereafter, the prosecutrix was admitted at Aruna Asif Ali Road, Hospital, where ultimately she died. The Doctor who examined the prosecutrix found that the victim had suffered acute cardiopulmonary arrest and therefore she died. As per the post-mortem report of the deceased, the exact cause of death of the deceased could not be ascertained, as such the viscera was preserved. However, no external or internal ante-mortem injuries were found on the body of the deceased. Learned A.G.A. contends that the viscera report of the deceased has not yet been received.
The learned counsel for applicant submits that the only evidence that has emerged against applicant in the crime in question is an extra-judicial confession that applicant is alleged to have submitted a certificate issued by the Pradhan, Gram Panchayat Sudanpur, Block Kyara, Bareilly containing the name and parentage of the deceased, which was ultimately found to be forged. On the above premise, the learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in the above mentioned case crime number. No offence under any of the charging sections has been made out against the applicant as the only material evidence that has emerged against the applicant is that he is the carrier of the certificate issued by the Pradhan concerned for receiving the dead body of the deceased from the hospital and ultimately the same was found to be forged. Relying on disability certificate issued by Chief Medical Officer, Bareilly, copy of which is at page 69 of the paper book, learned counsel for the applicant contends that as the applicant is blind of both eyes, hence the involvement of applicant in the commission of alleged offence is highly doubtful and not trustworthy. Even otherwise applicant is a man of clean antecedents, inasmuch as, he has no criminal history to his credit except the present one. Applicant is in custody since 06.04.2023. As such he has undergone more than three months of incarceration. The police report under Section 173 (2) CrPC has already been submitted on 29.05.2023. As such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of investigation. Reference in this regard is made to the judgement of the Apex Court in Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra and another, 2023 Livelaw SC 373 (Paragraph 5).On the above premise, he thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a charge-sheeted accused therefore no indulgence be granted in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned senior counsel for the applicant with reference to the record at this stage.
Having heard the leaned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, complicity of the accused, accusation made, nature and gravity of offence, submissions urged by the learned counsel for applicant as noted herein-above have not been dislodged by the learned A.G.A. and coupled with the fact that there is nothing on record to suggest that applicant actively participated in the crime in question. Apart from above the court finds that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one, the police report under Section 173 (2) CrPC has already been submitted and therefore the entire evidence sought to be relied upon by the prosecution against the present applicant stands crystalized, up to this stage learned A.G.A could not point out any such incriminating circumstance necessitating the custodial arrest of applicant during the course of trial, the judgement of the Supreme Court in Sumit Subhashchandra Gangwal and another (supra), the clean antecedents of applicant the period of incarceration undergone and also the fact that applicant is totally blind, but without making any comment on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant-Bhagwandas, be released on bail in the aforesaid case crime number 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.
(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., 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, in accordance with law, under section 174-A I.P.C.
(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 him 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 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 :- 14.7.2023.
Rks.