Allahabad High Court
Neeraj vs State Of U.P. on 1 May, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 332 of 2023 Applicant :- Neeraj Opposite Party :- State of U.P. Counsel for Applicant :- Vidit Narayan Mishra Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Vidit Narayan Mishra, learned counsel for applicant and Sri Rishi Chadha, learned A.G.A. for State.
2. Applicant- Neeraj, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.111 of 2022 under Sections 302, 201, 34 I.P.C., Police Station- Teelamod, District - Ghaziabad after rejection of his Bail Application vide order dated 13.10.2022 passed by Sessions Judge, Ghaziabad.
3. The Facts of the present case are as follows :-
i. A missing report dated 19.12.2021 was lodged by Smt. Rajrani wife of Late Rajveer Singh at P.S. Tila Modh, District Ghaziabad. As per the said report it has been stated that the son of the complainant namely Prince aged about 23 years was doing cricket coaching at cricket academy situated at village Jawali, Ghaziabad. He was missing since 17.12.2021. His mobile, having mobile No.9671811279 and 8168091762 were switched off. This missing report was entered in G.D. No.47 at 20.02 hours on 19.12.2021.
ii. In pursuance of the missing report, enquiry was conducted by the Investigating Officer and on basis of C.D.R. Report, arrested one co-accused namely Surendra and from his possession the motor cycle of Prince was also recovered having registration No.U.P. 17 P 5180.
iii. In the confessional statement made by the co-accused Surendra, it has been stated that Prince was having an affair with his wife Suman and as well as sister of co-accused namely Neeraj (applicant herein). Co-accused Surendra along with other accused namely Suman, NeerajZ (applicant), Rahul Sharma and Vikas made a plan to eliminate Prince and called him at his house at Pansheel Colony through Suman. At their house they all throttled Prince and thinking him to be dead, threw his body in a Nala at Sahibabad Industrial Area falling under Police Station, link Road, Ghaziabad.
iv. The body of Prince was recovered by the link Road Police Station and his Panchayatnama was conducted on 31.12.2021 at 16.14 as an unknown dead body.
v. Post-mortem was got conducted as unknown by link Road, Police Station, Ghaziabad on 01.01.2022. The cause of death has been shown as "Asphyxia as a result of anti-mortem drowning", duration of death has been shown as four to six days old. No external injury was seen on any part of the body.
vi. After the arrest of the Surendra, Investigating Officer reached the link Road Police Station and the photo of dead body recovered by them was identified by co-accused Surendra as that of deceased Prince. Since the body was badly decompressed, therefore, the mother of Prince was not able to identify him from the Photograph. The site map was made at the pointing out of co-accused Surendra. The Investigating Officer namely, S.I. Jaswant Singh, P.S. Teela Modh, Ghaziabad submitted his enquiry report on 19.03.2022 and suggested that the missing report be converted to a First Information Report. It was therefore, case Crime No.111 of 2022, P.S. Teela Modh was registered on 20.03.2022 under Section 302, 201, 34 I.P.C.
4. Learned counsel for applicant has made following submissions :-
a. Police has planted the motor cycle of Prince on co-accused Surendra and similarly the mobile phone of deceased was planted on the applicant.
b. In the missing report, Prince has been shown to be aged about 23 years, however, the body recovered is of a man aged about 40 years.
c. There was no external injury shown on dead body in the post-mortem report. Cause of death has been shown as Asphyxia as a result of ante-mortem drowning.
d. Applicant has been arrested on basis of suspicion only.
e. Other co-accused Rahul Sharma and Vikas Sharma have been released on bail by the court below.
f. Other co-accused namely Suman has been granted bail by this Hon'ble Court.
5. Learned counsel for applicant further submits that applicant is in jail since 18.03.2022 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
6. Learned A.G.A. has made following submissions :-
1. Mobile of Prince was recovered from applicant Neeraj.
2. Co-accused Surendra and Suman in their confessional statement have named the applicant, assigning specific role.
3. Motor cycle of the deceased Prince was recovered from co-accused Surendra.
4. The Investigating Officer after lodging of the missing report provided the mobile numbers of the deceased Prince to the surveillance cell and thereby obtained the C.D.R. reports. It is from the C.D.R., role of co-accused Surendra came into light and was arrested and she made a confessional statement, disclosing role of applicant.
7. LAW ON BAIL - A SUMMARY A. The basic rule may perhaps be tersely put as bail, not jail.
B. Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.
C. While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.
D. Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.
(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)
8. As referred above, in the present case, dead body was not identified as it was found in a decomposed position. Evidence against applicant is a confessional statement of co-accused as well as a motive that deceased was having illicit relationship with her sister, which does not appear to be corroborated by any material evidence.
9. The alleged recovery of phone appears to be not supported by any independent witness as well as that co-accused Suman and other two co-accused have already been granted bail. Therefore, considering the nature of evidence against applicant to be circumstantial in nature, therefore, applicant who is in jail since 18.03.2022, has made out a case of bail.
10. Let the applicant- Neeraj 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 the 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 shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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 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.
iv. The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.
11. 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.
12. The bail application is allowed.
13. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 1.5.2023 P. Pandey