The Allahabad High Court has granted bail to the accused on the grounds that two persons who have been alleged to participate in actual occurrence to shoot dead two persons, have already been granted bail.
The High Court granted bail after observing that it has not brought on record that said orders have been challenged before the Supreme Court by either of parties as well as that allegation against applicant is of participation in hatching a conspiracy to commit the crime and taking note that applicant is in jail since 23.11.2021.
A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc Bail Application filed by Shankar Lal.
By means of the application, applicant – Shankar Lal has approached the Court for bail in Case under Sections 302, 120-B I.P.C, Police Station- Baheri, District- Bareilly.
It is a case of double murder wherein a charge sheet was filed against eleven persons alleging active participation as well as for hatching a conspiracy.
Coordinate Benches of the Court by different orders have granted bail to nine co-accused persons and one of the co-accused which was declared juvenile was granted bail by appropriate Court.
Counsel for applicant submitted that allegations against applicant are of hatching conspiracy whereas co-accused, on whom allegation of actual commission of offence have already been granted bail, therefore, applicant, who is in jail since 23.11.2021 may be released on bail during trial.
AGA appearing for State submitted that there is an eye witness account Bhagwan Das who has named the applicant also and he also points out that it appears that eye witness account has not been brought on record before coordinate Benches.
The Court observed that,
(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 a 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) Overcrowding 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.
The Court have carefully perused orders passed by the coordinate Benches granting bail to co-accused persons and the Court shocked that even in case where two persons are shot dead, assistance of A.G.A was very minimum and the Courts note that ” A.G.A has opposed the bail plea”, “per contra, A.G.A has vehemently opposed the prayer for grant of bail to the applicant”, and, “per contra A.G.A opposed the bail application of the applicants”. It appears that not a single argument was raised by the AGA.
“However, considering that co-accused persons who have been alleged to participate in actual occurrence to shot dead two persons have already been granted bail and it has not brought on record that said orders have been challenged before Supreme Court by either of parties as well as that allegation against applicant is of participation in hatching a conspiracy to commit the crime and taking note that applicant is in jail since 23.11.2021, I find that it is a fit case for grant of bail”, the Court further observed while allowing the bail application.
The Court ordered that,
Let the applicant- Shankar Lal 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 IPC.
(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.
The identity, status and residential proof of sureties will be verified by the 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.
It is made clear that the observations made hereinabove are only for the purpose of adjudicating the bail application.