Rajesh Kumar vs State Of U.P.
2021 Latest Caselaw 2340 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 30
 

 
Case :- BAIL No. - 8837 of 2019
 
Applicant :- Rajesh Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ashok Kumar Srivastava,Aishwarya Pratap Singh,Dhruvendra Kumar Singh,Sunil Kumar Singh,Vivek Kumar Divedi
 
Counsel for Opposite Party :- G.A.
 
With
 
Case :- BAIL No. - 8843 of 2019
 
Applicant :- Shivpal Patel
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ashok Kumar Srivastava,Aishwarya Pratap Singh,Dhruvendra Kumar Singh,Sunil Kumar Singh,Vivek Kumar Divedi
 
Counsel for Opposite Party :- G.A.
 
With
 
Case :- BAIL No. - 8456 of 2019
 
Applicant :- Chhoteylal Patel
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ashok Kumar Srivastava,Aishwarya Pratap Singh,Dhruvendra Kumar Singh,Sunil Kumar Singh,Vivek Kumar Divedi
 
Counsel for Opposite Party :- G.A.
 

 

 
Hon'ble Vikas Kunvar Srivastav,J.

The case is called out.

Learned counsel for the bail-applicants Sri Aishwarya Pratap Singh, Advocate and learned A.G.A. for the State Ms. Mamta Pandey, Advocate are present in the Court.

The present bail-application is moved on behalf of accused-applicants-Rajesh Kumar, Shivpal Patel and Chhoteylal Patel who are involved in Case Crime No.65/2019, under Sections 147, 148, 149, 302, 201 of I.P.C., registered at Police Station Sangramgarh, District Pratapgarh.

The occasion of present bail-application has arisen on rejection of bail-plea of the accused-applicants-Rajesh Kumar and Shivpal Patel by learned Sessions Judge, Pratapgarh vide order dated 05.07.2019, whereas the bail-plea of accused-applicant Chhoteylal Patel was rejected vide order dated 23.07.2019.

Counter affidavit and rejoinder affidavit have already been exchanged between the parties appearing in the case. As such, the case is riped for hearing.

Reading over the first information report, learned counsel submitted that the first information report was lodged on 15.04.2019 with regard to incident dated 06.04.2019. According to which, it is reported that the deceased namely Pradeep Kumar, whose marriage was settled with grand daughter of Chhoteylal Patel, the co-accused, informing his friend-Atul, went to the house of Chhoteylal Patel with instructions not to call him for half an hour since he returns therefrom. The informant has reported in the complaint that when the mobile phone of his deceased-son was not responding, as it was switched off, he was searched out everywhere and even also in the brick kiln where he was employed but could not be traced out. After an intensive search alongwith relatives and native villagers, the informant lodged F.I.R. of his son's missing on 13.04.2019. Subsequently, they when coming back, they heard of a dead body found in the bushes abutting the banks of canal situated in village Gobari, Police Station Kunada, District Pratapgarh. The body was identified by the informant and the other native villagers as that of deceased-Pradeep Kumar (the missing son of the informant).

Learned counsel submitted that first information report was lodged belatedly when the body was found, otherwise, there was no suspicion as to the involvement of present accused-applicants in the case, while the deceased's friend-Atul was immediate person to know about the deceased's alleged plan to go to the home of his perspective in-laws.

Learned counsel further submitted that Investigating Officer has not collected evidence of witnesses who might have lastly seen the deceased particularly going in the house of Chhoteylal Patel or with any member of his family when he was alive. Moreover, the spot, where the body was found, is at the distance of approximately 10 K.M. from the house of present accused-applicants. Then also none of the member of the family was seen at about the date and time of incident or subsequent thereto, before the deady body was found.

Learned counsel further submitted that no enmity is stated on the part of the accused-applicants with any family members of the deceased or with deceased also. Learned counsel further submitted that the entire case is lacking direct evidence in the matter and the suspicion is the main basis of implication.

Learned counsel lastly submitted that the accused-applicants are reputed persons of the locality, having no criminal antecedents and so far as the incident is concerned, they are targeted only for the reason of suspicion and they are ready and willing to face the trial, are not in a position to flee away from the process of Court, as they are permanent resident of the locality. On the facts and circumstances, learned counsel prays for their release on bail.

On the other hand, learned A.G.A. submitted that the information received from the deceased's friend-Atul with regard to his plan to go in the house of in-laws and the dead body of the deceased was found is suspicious to presume the involvement of accused-applicants in the offence. However, learned A.G.A. has not rebutted the facts that there is no evidence of any last seen witnesses with regard to deceased's going in the house of present accused-applicant or seen with any family members of the accused-applicants at any place, either inside or outside the house or near the spot, where the dead body was recovered. In the circumstances, there is no prima facie evidences to arraign the present accused-applicants in the offence, as collected by the police/prosecution.

Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I, without making any comment as to the merit of the case, the complicity of accused in the offences, their role, have find force in the submission of learned counsel for the bail-applicants to enlarge them on bail.

Let applicants (Rajesh Kumar, Shivpal Patel and Chhoteylal Patel) involved in Case Crime No.65/2019, under Sections 147, 148, 149, 302, 201 of I.P.C., registered at Police Station Sangramgarh, District Pratapgarh be released on bail on their furnishing a personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.

(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants 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 them in accordance with law.

Order Date :- 17.2.2021

Saurabh