Buddh Sen v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42682 of 2023 Applicant :- Buddh Sen Opposite Party :- State of U.P. Counsel for Applicant :- Shri Prakash Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Shri Prakash Dwivedi, the learned counsel for applicant and the learned A.G.A. for State.

¶2Second supplementary affidavit filed by the learned counsel for applicant in Court today, is taken on record.

¶3Perused the record.

¶4This application for bail has been filed by applicant-Buddh Sen, seeking his enlargement on bail in Case Crime No. 12 of 2023, under Sections 302, 201 IPC, Police Station-Haliya, District-Mirzapur during the pendency of trial.

¶5Record shows that in respect of an incident, which is alleged to have occurred on 04.02.2023, a prompt FIR dated 04.02.2023 was lodged by first informant-Dharmendra Kumar (son of the deceased) and was registered as Case Crime No. 12 of 2023, under Section 302 IPC, Police Station-Haliya, District-Mirzapur. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.

¶6Learned counsel for applicant contends that applicant is not named in the FIR but a charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant on 02.04.2023 yet applicant is liable to be enlarged on bail. Present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence in question. The complicity of an accused in a case based upon circumstance evidence has to be inferred in accordance with the parameters laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 (Paragraph 152). However, up to this stage, no such circumstance has emerged on the basis of which, the complicity of applicant can be inferred in the crime in question. The only incriminating circumstance that has emerged against the applicant is the statement of one of the witness namely Atibal (uncle of the deceased).

¶7However, after submission of the charge sheet, cognizance was taken upon same by concerned Magistrate. However, as offence complained of is exclusively triable by court of Sessions. Resultantly, the concerned Magistrate committed the case to the court of Sessions. As a consequence of above, Sessions Trial No. 432 of 2023 (State Vs. Sanjay Kumar and Others) came to be registered. During course of trial, three prosecution witnesses of fact namely PW-1 Dharmendra Kumar, PW-2 Asha Dev and PW-3 Atibal have been deposed before court below but they have not supported the charge sheet. The applicant is the son of the deceased.

¶8Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 10.02.2023. As such, he has undergone more than 8 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶9Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶10Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that three prosecution witnesses of fact examined up to this stage before court below, have not supported the prosecution case, therefore, no useful purpose shall be served in prolonging the custodial arrest of applicant, the applicant is the son of the deceased, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

¶11Accordingly, the bail application is allowed.

¶12Let the applicant-Buddh Sen, be released on bail in the aforesaid case crime number on his 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

¶13However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 16.10.2023 Vinay High Court of Judicature at Allahabad