Praveen Upadhyaya vs State Of U.P.
2021 Latest Caselaw 10818 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- BAIL No. - 7675 of 2018
 

 
Applicant :- Praveen Upadhyaya
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Viveka Nand Mishra,B M Sahai,Indrajeet Shukla,Kaushal Tiwari,Rakesh Singh Mehta,Rashmi Upadhyaya
 
Counsel for Opposite Party :- Govt. Advocate,Z Jilani,Zafaryab Zilani
 

 
Hon'ble Rajeev Singh,J.

Heard Shri Kaushal Tiwari, learned counsel for the applicant, Shri Ran Vijai Singh, learned A.G.A. for the State, Shri Najam Zafar, learned counsel for the complainant and perused the record.

The present bail application has been filed by the applicant inF.I.R. No. 83 of 2017, under Sections 302, 504 IPC, Police Station Bewana, District Ambedkar Nagar with the prayer to enlarge him on bail.

Learned counsel for the applicant submits that applicant has falsely been implicated in the present case, merely on the basis of some annoyance in between the deceased and the applicant. It is further submitted that indisputably, on 23rd September, 2017, Emergency Medical Officer, District Hospital, Ambedkar Nagar has reported to Station House Officer, P.S. Kotwali Akbarpur, District Ambedkar Nagar that one male person was brought to the district hospital in the dead condition by the family members and someone has killed him. Details of the deceased were also mentioned. This information was sent from the district hospital at 5.45 p.m. and the name of the person, who brought the dead body, was mentioned as Mustafa (father of the deceased). It is also submitted by the learned counsel for the applicant that thereafter inquest of the body of the deceased was conducted by the police officials, P.S. Kotwali Akbarpur, District Ambedkar Nagar on 23rd September, 2017 at 9.30 p.m. Md. Mustafa and one Md. Kalim, who were claiming themselves as eye witness, were the witnesses of the inquest and their names are at serial nos. 1 and 2. They opined that deceased died due to head injuries. Learned counsel for the applicant submits that on the written complaint of the wife of the deceased, the F.I.R. was lodged on the same day at 7.30 hrs. with the allegation that when she was going with her husband on motorcycle as a pillion rider, the applicant and co-accused assaulted him with axe. Thereafter, the accused persons ran away. On the information, her father-in-law reached to the spot and after arranging a taxi, the body was brought to the district hospital.

Submission of the learned counsel for the applicant is that the information about the incident was given by the informant to the Mustafa, who reached on the spot, but he has not reported that as to who caused the injury. Later on, false implications were made. It is also submitted that thereafter, the post mortem of the body of the deceased was also conducted, wherein seven injuries were found on the body of deceased, but as per the eye witnesses, only one injury was caused by the applicant and thereafter, the co-accused also caused injury with axe. It is next submitted that false recovery of the weapon was shown by the police. Learned counsel for the applicant submits that in the charge sheet, name of 20 witnesses are mentioned, but till today, only three witnesses of the fact have been examined and there is no possibility of conclusion of the trial in near future. It is vehemently submitted that all the witnesses of fact have been examined and, thus, there is no possibility of tampering of any evidence. It is also submitted that one NCR was lodged by Kalim, which was registered as NCR No. 17 of 2017, under Sections 323, 504 I.P.C. and after investigation, charge sheet was filed on 20.06.2017. However, since the said fact was not known to the applicant, he could not give the details of the same in the bail application. Applicant is in jail since 06.10.2017. In such circumstances, applicant is entitled for bail. It is also submitted that the applicant will never misuse the liberty of bail and shall fully cooperate in the investigation.

Learned A.G.A. as well as learned counsel for the complainant oppose the prayer for grant of bail to the applicant and submit that the eye witnesses, who were examined before the trial court, have supported the prosecution story.

Learned counsel for the complainant also places reliance on the decision of the Hon'ble Supreme Court in the case of Harjit Singh Vs. Inderpreet Singh @ Inder & Anr. (Criminal Appeal No. 883 of 2021) decided on 24.08.2021 and submits that there is a life threat to the informant as well as other family members and, therefore, applicant is not entitled for bail.

However, learned counsel appearing for the opposite parties do not dispute that only the formal witnesses are to be examined. Further, the judgment relied by the learned counsel for the complainant is not applicable in the present case.

Considering the rival submissions of learned counsel for parties and going through the contents of the F.I.R. and the information given by the Emergency Medical Officer on 23rd September, 2017 at 5.45 p.m. as well as inquest report, post mortem report and the statements of Mustafa and Kalim, it is evident that all the witnesses of fact have already been examined and only formal witnesses are to be examined. In view of above, I am of the view that the applicant, who is in jail since 06.10.2017, is entitled to be released on bail.

Let applicant -Praveen Upadhyaya be released on bail in F.I.R. No. 83 of 2017, under Sections 302, 504 IPC, Police Station Bewana, District Ambedkar Nagar, on his furnishing personal bond of Rs. 2 lac and two reliable sureties of equal amount, subject to following conditions:-

(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.

(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.

(3) Applicant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

(4) The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

(5) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.

However, trial court is directed to conclude the trial of the case expeditiously, preferably within a period of one year without giving any unnecessary adjournments to either of the parties.

Superintendent of Police as well as Joint Director (Prosecution) concerned are directed to ensure the presence of the witnesses before the trial court.

Office is directed to communicate this order to the authorities concerned for necessary compliance, forthwith.

Order Date :- 25.8.2021

VKS