Criminal Appeal against bail rejection. High Court set aside impugned order allowing appellant's release on bail with personal bond and two sureties, emphasizing procedural irregularities and parity of co-accused.
Release on bail with personal bond and two sureties; impugned order dated 17.12.2020 set aside.
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Court No. - 50
Case :- CRIMINAL APPEAL No. - 83 of 2021
Appellant :- Brijendra @ Bhajju Respondent :- State Of U.P. And Another Counsel for Appellant :- Lakshman Singh,Santosh Kumar Pandey Counsel for Respondent :- G.A.,Vinay Kumar Singh
Hon'ble Arvind Kumar Mishra-I,J.
On the matter being taken up, no one responds on behalf of the informant side, despite repeated calls. Learned counsel for appellant and learned AGA are present.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the material on record of this appeal.
This criminal appeal is preferred against the impugned order dated 17.12.2020 passed by the learned Special Judge (SC & ST Act), Jalaun at Orai in Case Crime No.0780 of 2020, under Sections 323, 504, 506 and 364-A I.P.C. and 3 (2) (5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Kotwali- Orai, district-Jalaun rejecting the bail application of the appellant.
Learned counsel for the appellant submitted that appellant was not named in the F.I.R. and was subsequently named in the statement made by the coaccused. The informant, only in order to put pressure on the beneficiary of the will lodged the present F.I.R. The name of the appellant was firstly came in the extra- judicial confession of co- accused Babalu Pal. The coaccused Arvind Kumar Sharma who was the main beneficiary of the will has already been enlarged on bail vide order dated 3.12.2020 and the other two accused namely Roopendra Singh and Babu Pal who are also similarly situated as the appellant were granted bail by this Court in Criminal Appeal Nos.3757 of 2020 and 146 of 2021 vide order dated 15.6.2021 and the appellant is languishing in jail since 29.10.2020.
Learned A.G.A. and the learned counsel for the informant have opposed the bail and submitted that the appellant has actively participated in the commission of crime. However, it is not disputed that similarly situated co-accused have been granted bail by this Court.
Heard learned counsel for the parties and perused the record.
Law on bail is well settled that 'Bail is a rule and jail is an 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 the criminal antecedents of the accused.
It is also well settled that the Court while considering an application for bail must not go into deep into 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.
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 court 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.
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 that the appellant was not named in the F.I.R., the beneficiary of the 'Will' as well as similarly situated co-accused has been granted bail by this Court, the appellant is entitled to be released on bail and the learned trial court erred in rejecting the bail application of the appellant.
Let the appellant- Brijendra @ Bhajju , involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The appellant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The appellant 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 appellant 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 appellant will not misuse the liberty of bail in any manner whatsoever. In case, the appellant 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 appellant 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 appellant 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 appellant 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to
conclude the trial expeditiously after the release of the appellant.
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 appellant to prison.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
Accordingly, the impugned judgement and order dated 17.12.2020 is setaside and the present appeal is allowed.
Order Date :- 19.7.2021 Raj
3 issues framed by the court
Whether bail should be granted to the appellant given he was not named in the FIR and similarly situated co-accused were granted bail?
Whether the trial court erred in rejecting the bail application?
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9 provisions across 9 enactments
Brijendra @ Bhajju
State Of U.P.
Arvind Kumar Mishra
As recorded by the court registry
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