Allahabad High Court
Amit Yadav And Another vs State Of U.P. on 19 July, 2021
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24810 of 2021 Applicant :- Amit Yadav And Another Opposite Party :- State of U.P. Counsel for Applicant :- Dhirendra Kumar Srivastava Counsel for Opposite Party :- Saroj Kumar Tripathi Hon'ble Saurabh Shyam Shamshery,J.
1. Heard learned counsel for the applicant, learned A.G.A. and perused the record.
2. The applicants have approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.159 of 2021, under Sections 147, 323, 506, 304 IPC, Police Station - Mughalsarai, District - Chandauli.
3. It is alleged that in the First information Report that on the day of occurrence when the brother of first informant was near the house of applicant no.2, his pet dog rushed towards him and bite at his feet. The father of the first informant, who was a heart patient, reached at the house of applicant no.2 - Subedar Yadav. There were exchange of hot talks between the parties. Father of the informant, thereafter, returned to his house where he fall down and was brought dead to the hospital. Post-mortem report opined that cause of death was due to cardio pulmonary arrest. Learned counsel for the applicants submitted that death of the deceased, who was 70 years old, was natural due to heart attack. It is admitted case that he was suffering from heart disease. No bodily injury was caused to him. The case would not fall beyond the Section 304-II. The statement of the witnesses recorded during investigation have stated that there were struggle between the parties and when the deceased reached to his house, he suddenly fainted. It is lastly submitted that applicants are languishing in jail since 21.4.2021, there is no likelihood of early disposal of trial and the applicants undertake that if they are enlarged on bail, they will never misuse his liberty, will not commit any offence during bail and will co-operate in the trial.
4. Learned A.G.A. submitted that deceased was a neighbour and the applicants have prior knowledge that he was suffering from heart disease. Therefore, this is not a case which would fall under Section 304-II rather it is a case of 304-I IPC.
5. (A) 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 liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.
(B) It is also well settled that the Court while considering an application for bail must not go into deep 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.
(C) 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. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. 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.
(D) The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, reported in 2021 SCC Online SC 230, in this regard.
6. 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 it appears that in the present case initially, there were exchange of hot words and struggle between the parties due to dog bite. Later on, deceased also went to the place. However, prima facie, it does not appear that there was any intention to cause death of deceased. Considering that the deceased was a patient of heart disease and he fainted after he reached at his house. Prima facie, it appears that it is a case which may fall under the Section 304-II IPC and also taking note that cause of death was due to cardio pulmonary arrest, no bodily injury was caused to him and also considering that there are no previous criminal history of the applicants and they are languishing in jail since 21.4.2021, this Court is of the view that a case of grant of bail is made out.
8. Let applicant - Amit Yadav and Subedar Yadav 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 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 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.
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 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.
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 him in accordance with law and Trial Court may proceed against him under Section 229-A IPC.
9. 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.
10. The bail application is allowed.
11. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
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. It is expected from the trial court that trial of this case will be concluded expeditiously and while granting any adjournment, trial court will take note of the provisions of Section 309 Cr.P.C.
15. 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 :- 19.7.2021 Rishabh