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Judgment
Sanjay Kumar Pachori, J
Heard, Sri Rajeev Kumar Rai, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of applicant Imran under Section 439 of The Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 936 of 2020, under Sections 147, 148, 149, 307, 34, 414 of the Indian Penal Code, registered at Police Station Dadri District Gautam Budh Nagar, during pendency of the trial.
Brief facts of the case as unfolded from the First Information Report is that on 26.12.2020 at 21.00 hours, Sub-Inspector Narendra Sharma was on the patrolling duty, he got information from the informer that a car is standing behind the Children Academy on an open place and few persons involved in the activities of cow slaughtering. The police party reached at the spot, after seeing the police, all accused persons started firing upon the police party, saving themselves, arrested co-accused Mehtab at 00.30 hours on 27.12.2020, and recovered slaughtering instruments from unnumbered Honda City Car, five other miscreants fled away taking benefit of darkness.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The FIR of the present case has been lodged on false and frivolous allegations on the basis of planted recovery. The applicant has not been arrested from the spot. He has been implicated in the present case on the basis of confessional statement of co-accused Mehtab. This is police encounter no injury case. It is further submitted that the applicant has no concern with the co-accused Mehtab. No incriminating article has been recovered from the possession or pointing out of the applicant, no prima facie case is made out against the applicant. The applicant has surrendered before the court on 1.2.2021. The applicant has been implicated in 14 other criminal cases, which all were registered at P.S. Dadri District Gautam Budh Nagar, detail descriptions are as follows:
Sr.
No.
Case Crime No.
Sections
Description
1.
92 of 2006
5/6 of U. P. Prevention of Cow Slaughter Act.
No witness has been examined till today.
2.
103 of 2007
302 of I.P.C.
Acquitted by trial court.
3.
148 of 2007
4/25 Arms Act.
Acquitted by trial court.
4.
342 of 2007
3(2) of National Security Act.
lapsed after acquittal in case no. 103 of 2007
5.
132 of 2008
452, 504, 506 of IPC.
No witness has been examined till today.
6.
664 of 2008
110 G of Cr.PC.
lapsed.
7.
915 of 2018
8/20 of NDPS Act.
No witness has been examined till today.
8.
10 of 2019
307, 504, 506 of IPC
No injury case.
9.
275 of 2020
188, 269, 270 of IPC and 11 of Prevention of Cruelty to Animals Act.
10.
338 of 2020
188, 269, 270 of IPC and 11 of Prevention of Cruelty to Animals Act.
11.
352 of 2020
188, 269, 270 of IPC and 3/11 of Prevention of Cruelty to Animals Act.
12.
416 of 2020
188, 269, 270 of IPC and 11 of Prevention of Cruelty to Animals Act.
13.
928 of 2020
3/5 of U.P. Prevention of Cow Slaughter Act.
Implicated on the basis of confessional statement
14.
482 of 2021
2/3 of U. P. Gangsters & Anti Social Activities (Prevention) Act.
Not applied for bail.
Learned counsel for the applicant next submitted that the applicant has been acquitted in two cases (Sr. No. 2 and 3), two cases (Sr. No. 4 and 6) in which proceedings have been lapsed after acquittal in case at Sr. No.2, he has no criminal antecedent during the period of 2008 to 2018 and the applicant has been implicated in 10 other criminal cases out of 14 cases by the police of same police station, which are not heinous in nature. The applicant has been granted bail in all the cases except one case Sr. No. 14. The applicant has not undergone any imprisonment after conviction by any court in respect of any offence.
It is further submitted that co-accused Furkan, Mehraj, Irshad and Mehtab, having similar criminal antecedent, have been granted bail by the Co-ordinate Benches of this Court vide orders dated 22.7.2021, 2.8.2021, 3.9.2021 and 11.8.2021 in Criminal Misc. Bail Application Nos. 16512 of 2021, 21946 of 2021, 16991 of 2021 and 29317 of 2021 respectively. Copies of bail orders have been annexed as Annexure RA-1 to the rejoinder affidavit. It is next contended that there is no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant is languishing in jail since 1.2.2021, undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the court, there is no likelihood of any early conclusion of trial.
Per contra, learned A.G.A. has opposed the prayer of bail and submitted that the applicant is a hardened criminal and having long criminal history. After collecting sufficient credible evidence against the applicant and other co-accused charge sheet has been submitted. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
The duty of the Courts with regard to the liberty of citizen has been considered by the Supreme Court in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, wherein it was observed thus:
"67...Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum - the district judiciary, the High Courts and the Supreme Court - to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum - the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of (and not by) law. Yet, much too often, liberty is a casualty when one of these components is found wanting.
More than four decades ago, in a celebrated judgment in State of Rajasthan v. Balchand1 Krishna Iyer, J. pithily reminded us that the basic rule of our criminal justice system is "bail is not jail"2. The High Courts and courts in the district judiciary of India must enforce this principle in practice, and forego that duty, leaving this Court to intervene at all times. We must in particular also emphasise the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the "subordinate judiciary". It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them...."
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined in para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative" and considering the facts of the present case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Imran be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) 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 of Cr.P.C.
(iv) 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 the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
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.