Daroga Katiyar@ Rama Shankar vs State Of Uttar Pradesh

Counter affidavit filed by the learned A.G.A. is taken on record.

Heard learned counsel for the applicant, learned A.G.A. and perused the record.

The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.356/2020, under Section 302 I.P.C., Police Station-Bilhaur, District-Kanpur Nagar after rejection of his Bail Application vide order dated 12.1.2021 passed by Incharge District and Sessions Judge, Kanpur Dehat.

Learned counsel for the applicant submits that F.I.R. was lodged against three named and one unknown person including the applicant alleging that the complainant who is the brother of the deceased found dead body of his brother on 02.9.2020 at about 6 A.M. It was further alleged that one day before at 6 P.M., the accused were offering drinks to his brother to which he objected. It is further submitted that there is no eye witness to the alleged incident and the name of the accused, applicant and another co-accused has been disclosed only on the basis of suspicion. The evidence against the applicant is only the confessional statement of himself and other co-accused, nothing incriminating has been recovered from the possession of the applicant and the similarly situated co-accused Surendra Yadav and Narendra Yadav have been granted bail by this Court vide orders dated 28.1.2021 and 10.2.2021 passed in Criminal Misc. Bail Application Nos.3275 of 2021 and 45927 of 2020. The applicant has no other reported criminal antecedent and he is languishing in jail since 19.9.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.

Learned A.G.A. has vehemently opposed the bail application and submits that the chain of circumstantial evidence is complete, the applicant and co-accused were present along with the deceased a day before the incident. However, he has not disputed that similarly situated co-accused has been granted bail by this Court.

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 the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility 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 while considering application for bail. 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. 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. The Court while granting bail in the cases 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, Criminal Appeal No.329 of 2021, decided on 18.3.2021 in this regard.

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 evidence against the applicant is in the nature of circumstantial evidence, the name of the applicant was mentioned only on the basis of suspicion, nothing incriminating was recovered from the possession of the applicant, similarly situated two co-accused have been granted bail by this Court, applicant having no criminal history is languishing in jail since 19.9.2020, the applicant is entitled to be released on bail in this case.

Let the applicant Daroga Katiyar@ Rama Shankar, 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/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 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 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 applicant.

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.

The bail application is allowed.

The observations made hereinabove are only for the purpose of adjudicating the present bail application.