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Viresh vs State Of U.P. on 17 April, 2020


In Chamber

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 35260 of 2017

Applicant :- Viresh

Opposite Party :- State of U.P.

Counsel for Applicant :- Rajesh Yadav

Counsel for Opposite Party :- G.A.

Hon’ble Sudhir Agarwal, J.

1. This is second bail application moved by the accused-applicant, husband of victim Guriya, for enlarging him on bail in Case Crime No. 133 of 2015, under Sections 364, 498-A, 120-B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Kudfatehgarh, District Moradabad.

2. Learned A.G.A. has opposed the prayer for bail.

3. It is pleaded that marriage was solemnized in 2011. Informant, Jogendra Singh, i.e., brother of victim Guria, went to the residence of applicant where Guriya was not present and when inquired about her no proper reply could be given by father of applicant and they stated that both have gone to Punjab but when asked they did not make any attempt to allow talk on telephone stating that the applicant has left phone at residence. There was a rumour in the village that applicant and his other family members have murdered informant’s sister. It is stated that Informant himself during trial when examined as PW-1 stated that there was no differences between applicant and his wife and both were living cordially and he did not searched for his sister in Punjab. In the statement recorded by Police under Section 161 Cr.P.C. he has wrongly mentioned that an attempt to burn his sister was made by pouring kerosene oil as he has no information to this effect as no such statement was given in F.I.R. It is pleaded that wife of applicant has gone herself and is missing and there is nothing on record to show that she has been murdered or is no more alive, hence offence under Section 498A I.P.C. is not made out and applicant has been falsely implicated. Moreover, prosecution evidences have already been completed and there is no scope of tampering with evidence. More so, applicant is in jail for the last four years and nine months. There are no chances of applicant of fleeing away from judicial process or tampering with prosecution evidence. In case applicant is enlarged on bail, he will not misuse liberty of bail. He undertakes to appear personally on each and every date and also not to seek any unnecessary adjournment during trial.

4. Supreme Court in State though C.B.I. Vs. Amar Mani Tripathi 2005 (8) SCC 21 has also observed that normally bail should have been granted unless there exist circumstances/factors justifying denial thereof. Some of such circumstances have been stated  as under:

“(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of accused absconding or fleeing if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being tampered with; and

(viii) danger, of course, of justice being thwarted by grant of bail.”

5. In Rajesh Ranjan Yadav @ Pappu Yadav vs Cbi Through Its Director 2007 (1) SCC 70 while recognising that personal liberty is a valuable constitutional right recognized under Article 21, Court observed that while considering question of bail, judicial approach balancing personal liberty as well as interest of the society and also other relevant factors must be observed. Court further held that personal liberty of an accused or convict is also a fundamental right but if the circumstances so justify, it can be eclipsed. The length for which an accused has remained in jail before conviction, i.e., during investigation or trial, is a relevant consideration for the reason that in case ultimately the incumbent is found not guilty, i.e. having not committed any offence, it would be a travesty of justice to keep such a person in jail for years together and denial of personal liberty in such a case though may be mitigated by awarding appropriate compensation but cannot appropriately be compensated at all. Simply because Court takes a long time in trial, it will not be justified to keep a person in jail on the ground that Court or the prosecution is not efficient enough in completing trial in a reasonably short period and the incumbent must remain in jail, even though ultimately he may be found innocent. In fact, if a person is acquitted after a long and delayed trial, though incumbent was throughout in jail, even Judicial Officer would be having a feeling of contrition facing a situation where a person has served sufficiently a long term in imprisonment though, is found innocent and ultimately acquitted. No uniform principle can be laid down since every matter would depend on the circumstances of each case and it cannot be said that a person has remained in jail for long time, for that reason alone bail must be granted, but the period during which an incumbent has been remained in jail, during investigation or trial is a relevant factor. These are certain guidelines laid down in State through C.B.I. v. Amar Mani Tripathi (supra) were reiterated in Rajesh Ranjan Yadav @ Pappu Yadav vs CBI (supra).

6. In view of above and considering the facts and circumstances of the case, without expressing any opinion on merits of the case, I think it appropriate to release applicant on bail.

7. The application is allowed.

8. Let applicant, Viresh, involved in Case Crime No. 133 of 2015, under Sections 364, 498-A, 120-B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Kudfatehgarh, District Moradabad be released on bail, if not required in any other case, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with following conditions:

(i) The applicant will not temper with the evidence during trial.

(ii) The applicant will not pressurize/intimidate the prosecution witness.

(iii) The applicant will appear before Trial Court on the date fixed.

(iv) The applicant shall report to the Police Station concerned in the first week of each month to show his good conduct and behaviour.

9. In case of breach of any of above conditions by applicant, the Court below shall be at liberty to cancel his bail.

Order Date :- 17.4.2020




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