Allahabad High Court
Irshad (Third Bail) vs State Of U.P. on 9 November, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 28 Case :- BAIL No. - 4553 of 2020 Applicant :- Irshad (Third Bail) Opposite Party :- State of U.P. Counsel for Applicant :- Rajendra Prasad Mishra Counsel for Opposite Party :- Govt. Advocate Hon'ble Dinesh Kumar Singh,J.
1. Heard learned counsel for the applicant, learned A.G.A. and perused the record.
2. The present application under Section 439 Cr.P.C. has been filed seeking bail in Case Crime No.80 of 2018, under Sections 304, 504 and 323 IPC, Police Station Panchpedwa, District Balrampur. This is third application by the accused with prayer for bail.
3. Initially this Court vide order dated 20.12.2018 while considering the Bail Application No.6216 of 2018 passed the following order:-
"Counter affidavit filed today is taken on record.
Heard learned counsel for the accused-applicant(s) as well as learned A.G.A. and perused the record.
Accused-applicant seeks bail in F.I.R. No.80 of 2018, under Sections 304, 504 and 323 I.P.C., Police Station Panchpedwa, District Balrampur.
Learned counsel for the accused-applicant contends that the deceased suffered as many as nine injuries of contusions, even on temporal zone; from postmortem report, it is evident that the deceased died because of antemortem injuries.
Sri Himanshu Suryavanshi, learned A.G.A., has placed on record statement of witnesses recorded under Section 161 Cr.P.C. along with counter affidavit. There is an eye-witness account of the incident.
Considering the above facts and circumstances of the case and particularly that the deceased had suffered as many as nine antemortem injuries and death is result of shock and hemorrhage because of antemortem injuries, the accused-applicant cannot be enlarged on bail at this stage.
However, learned trial Court is directed to proceed with the trial and conclude the same within one year from the date certified copy of this order is produced, failing which trial Court will explain the reason for the same.
List after one year."
4. However, before the expiry of the said period of one year, the accused-applicant moved C.M. Application No.3557 of 2019 in the aforesaid Bail No.6216 of 2018. This Court while dismissing the aforesaid application on 29.4.2019 passed the following order :-
"This Court vide order dated 20th December, 2018 refused to enlarge the accused-applicants on bail at that stage, considering the number of injuries and nature of injuries of the deceased and the role played by the accused-applicants. Trial Court was also directed to conclude the trial within one year.
This application has been filed for modification of the said order with the prayer to give liberty to the accused-applicants to move a fresh bail application. From the earlier order it is clear that if the trial is not concluded within one year from the date certified copy of this order is produced then the bail of the accused-applicants would be considered on merit.
Considering the aforesaid order, the application is disposed of with further order that if during the course of trial the evidence has been recorded, which prima facie, does not disclose the involvement of the accused-applicants in commission of the offence then the accused-applicants would be at liberty to move an application even before expiry of one year as prescribed vide earlier order dated 20th December, 2018. With the aforesaid liberty, the bail application is also finally dismissed."
5. Second Bail No.6409 of 2019 was moved by the accused-applicant, which was dismissed for non-prosecution vide order dated 13.9.2019. Thus, this is the third bail application.
6. Learned counsel for the accused-applicant submits that initially an NCR No.0038 of 2018, under Sections 323 and 504 IPC was registered. The victim was examined at the Medical Health Center and he was discharged on the same day. Date of incident was 13.5.2018. Victim died on 17.5.2018. After the death of the victim, a fresh FIR No.0080 of 2018 was registered on 25.5.2018 under Sections 304, 504 and 323 IPC. From the post-mortem report, it is evident that the deceased had received as many as nine injuries by hard and blunt object. According to the post-mortem report, the deceased died because of the injuries received by him due to shock and hemorrhage. The accused-applicant has been in jail since 1.6.2018. He further submits that a coordinate Bench of this Court has granted bail to co-accused, Israr on 15.6.2020 in Bail No.7842 of 2019 by placing reliance on the judgement of the Supreme Court in the case of Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40. He, therefore, submits that looking at the nature of allegations and the long incarceration of the accused-applicant without conclusion of the trial and, the fact that co-accused has been granted bail, the accused-applicant should be enlarged on bail.
7. On the other hand, Sri Vipul Gupta, learned AGA has opposed the prayer for bail and submitted that death of the victim was due to ante-mortem injuries received by him, which is evident from the post-mortem report. He further submits that this Court while granting bail to co-accused, Israr in Bail No.7842 of 2019 has not taken into consideration the three subsequent judgements of the Supreme Court, wherein the Supreme Court has distinguished the judgement rendered in the case of Sanjay Chandra (supra). He cited the following three judgements of the Supreme Court to buttress his submission :-
" 1. Virupakshappa Gouda and another Vs. State of Karnataka and another, (2017) 5 SCC 406,
2. State of Bihar and another Vs. Amit Kumar alias Bachcha Rai, (2017) 13 SCC 751; and
3. Rohit Tandon Vs. Directorate of Enforcement, (2018) 11 SCC 46."
8. He further submits that the trial is progressing well and as per instructions dated 7.7.2020 received by him, as many as five witnesses have been examined and the trial is almost complete. He also submits that in the evidence before the trial court, involvement of the accused-applicant is clearly established. He, therefore, submits that at this stage, when the trial is almost complete, the accused-applicant should not be enlarged on bail.
9. I have considered the rival submissions of the parties and perused the record of the bail application.
10. It is true that the victim died four days after the date of the incident and, the accused-applicant and another are being prosecuted under Sections 304, 504 and 323 IPC. The accused-applicant has been in jail for almost two years and five months. Co-accused, Israr has been granted bail by this Court and, the role assigned to the accused-applicant is similar to that of co-accused.
11. The co-ordinate Bench of this Court while granting bail to the co-accused has placed reliance on following paras of Sanjay Chandra (Supra):-
"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."
12. The judgement in Sanjay Chandra's case (supra) has been distinguished in three subsequent cases cited by Sri Vipul Gupta, learned AGA mentioned above.
In the case of Virupakshappa Gouda (supra), the Supreme Court in paragraphs 13, 14 and 15 has explained as under:-
" 13. The proposition expounded above, has to be accepted, but that has to be applied appositely to the facts of each case. A bail application cannot be allowed solely or exclusively on the ground that the fundamental principle of criminal jurisprudence is that the accused is presumed to be innocent till he is found guilty by the competent court. The learned trial Judge has also referred to the decision in Sanjay Chandra [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] , wherein a two-Judge Bench while dealing with the bail applications, observed thus: (SCC p. 52, paras 21-23) ?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.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ?necessity? is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.?
14. Be it noted, though the aforesaid passages from Sanjay Chandra case [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] have their relevance but the same cannot be made applicable in each and every case for grant of bail. In the said case, the appellant-accused was facing trial for the offences under Sections 120-B, 420, 468, 471 and 109 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Thus, the factual matrix was quite different. That apart, it depends upon the nature of the crime and the manner in which it is committed. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field.
15. The court has to keep in mind what has been stated in Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525 : 2004 SCC (Cri) 1974] The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. In Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765] , it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully reproduce the said passage: (SCC p. 499, para 9) ?9. ? among other circumstances, the factors which are to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.?
13. Further, in the case of State of Bihar and another Vs. Amit Kumar alias Bachcha Rai (Supra) the Supreme Court has again clarified in respect of Sanjay Chandra's Case (Supra) and observed as under :-
"12. We are of the considered opinion that Sanjay Chandra [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] , as relied upon by the learned counsel for the respondent, is distinguishable from the case at hand as the charges in that case carried a maximum punishment for a term which may extend to seven years. In the present case, charge-sheet has been submitted, inter alia, for the offences under Sections 409 [ Which carries punishment of imprisonment for life, or imprisonment of either description for a term which may extend up to ten years and shall also be liable for a fine.] , 465, 467 [ Which carries punishment of imprisonment for life or with imprisonment of either description which may extend up to a term of ten years and shall also be liable to a fine.] , 468, 471, 188, 201, 212 and 120-B of the Penal Code, 1860 and Sections 8 [ Which carries punishment of imprisonment for minimum of three years and may extend up to seven years with fine.] , 9 [ Which carries punishment of imprisonment for minimum of three years and may extend up to seven years with fine.] , 13(1)(c)/(d) read with Section 13(2) [ Which carries punishment of imprisonment for minimum of four years and may extend up to ten years with fine.] of the Prevention of Corruption Act, 1988 [ It is to be noted that Prevention of Corruption Act, 1988 was amended by ?the Lokpal and Lokayuktas Act, 2013?, Act 1 of 2014 (w.e.f. 16-1-2014). This amendment has increased the minimum prescribed punishment under Sections 8, 9, 13(2) of the Prevention of Corruption Act.] . Therefore, Sanjay Chandra [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] provides no assistance for the respondent herein.
13. We are also conscious that if undeserving candidates are allowed to top exams by corrupt means, not only will the society be deprived of deserving candidates, but it will be unfair for those students who have honestly worked hard for one whole year and are ultimately disentitled to a good rank by fraudulent practices prevalent in those examinations. It is well settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail [Nimmagadda Prasad v. CBI, (2013) 7 SCC 466 : (2013) 3 SCC (Cri) 575; Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 : (2013) 3 SCC (Cri) 552] . Usually socio-economic offence has deep-rooted conspiracies affecting the moral fibre of the society and causing irreparable harm, needs to be considered seriously."
14. In the case of Rohit Tandon (Supra), Supreme Court has held that the ratio of Sanjay Chandra's case cannot be applied to a case in Money Laundering Acts as the Court was not called upon to consider the efficacy of Section 45 of the 2002 Act.
15. Grant or denial of bail depends upon the circumstances of each case. The Court while dealing with a bail application is required to consider the nature of accusation and severity of punishment provided for the offence. The Court is also required to consider evidence in support of the charges against the accused as well as reasonable apprehension of tampering with the evidence including threat to the complainant, on consideration of material and evidence, the Court has to, prima facie, satisfy itself regarding charges against the accused-applicant. In each and every case the observation of Sanjay Chandra's case (supra) cannot be applied. The facts of the individual case are to be considered along with other aspects as mentioned above. The Court is required to consider the gravity of offence, involvement of the accused and, the impact of the offence on society besides other factors while considering the bail application.Thus, reliance on the judgment of Sanjay Chandra's case (supra) may not be appropriate.
16. However, considering the fact that co-accused has been granted bail with common role and the accused-applicant has been in jail for almost two and a half years and the trial is progressing well, it would be appropriate to enlarge the accused-applicant on bail.
17. Let applicant Irshad be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-
(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.
(v) The party may file self attested computer generated copy of such order downloaded from the official website of High Court Allahabad and 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 :- 9.11.2020 Rao/-