RAJENDRA Vs. STATE OF U P

JUDGEMENT

(1.) THIS is the second bail application having been filed under Section 439 of the Code of Criminal Procedure, 1973 in Crime no. 78 of 1985 under Section 302, IPC, P. S. Kurra, district Mainpuri. Earlier bail application was rejected by this Court on 9-10-85.

(2.) THE prosecution story as unfolded in the FIR (Annexure A to the application), is that on 25-6-85 at about 11 a.m. Banti, the deceased, aged about 6 years, the nephew of the informant was taking his bath along with other children in a Bamba (stream of a canal). THE applicant caught hold of the deceased and strangulated him and threw him into the water. THE occurrence was seen by Km. Sadhna and Manish Kumar, the daughter and son respectively of the informant. Immediately after the occurrence the accused ran away and was seen by other persons. Annexure 2 is the post mortem report indicating no sign of injury on the neck. But there appears to be swelling of 3 cm on the forehead and the cause of the death was due to asphyxia caused by strangulation.

(3.) BEFORE grappling with the actual controversy involved, it is better to appreciate the concept of bail which is taken slightly otherwise in common parlance. According to grammer the woTd ' bail ' is both noun and transitive verb. The word ' Bail ' means the security for a prisoners' appearance for trial. The effect of granting bail is, accordingly, not to set the prisoner free from jail or custody, but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The necessary corollary is that it is open to the sureties to seize the prisoner at any time and may discharge themselves by handing him over to the custody of law and the result would be that he (the prisoner) would be then imprisoned.