Suraj Shukla (Third Bail) vs State Of U.P.
2021 Latest Caselaw 6366 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 6
 

 
Case :- BAIL No. - 357 of 2021
 

 
Applicant :- Suraj Shukla (Third Bail)
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- R.B.S. Rathaur,Vinod Kumar Singh
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Mrs. Rekha Dikshit,J.

This is third bail application.

First bail application bearing Bail No. 6092 of 2018 was rejected by a coordinate bench of this Court vide order dated 27.03.2019 on merits with a direction to the trial court to conclude the trial within a period of six months without granting any unnecessary adjournment to any of the parties.

Second bail application bearing Bail No. 10892 of 2019 was treated as short term bail by this Court and the accused applicant was enlarged on short term bail for a period of one month from the date of his release, vide order dated 14.02.2020 passed by this Court. The period of short term bail of the applicant was further extended for two months vide order dated 8.7.2020 passed by this Court.

Heard learned counsel for the applicant and Shri Ashok Kumar Sharma, learned AGA for the State through video conferencing in view of Covid-19 pandemic and perused the record.

As per version of F.I.R. lodged by the father of the deceased, on 16.12.2017 at 9.15 P.M. complainant Om Prakash Tiwari @ Jippi Tiwari along with his son and one Aditya Singh and Rohit Shukla were sitting in the campus of Kasmanda House Apartment, Hazratganj. In the meantime, one black colour Safari car came at the gate of Kasmanda House in which one Suraj Shukla and Vikram Singh were sitting. They got down from the car and called Vaibhav Tiwari outside the gate of the apartment. After sometime, they raised their voice and having seen this, complainant and other persons rushed towards the gate. In the meantime, present applicant and co-accused Vikram Singh who were having guns in their hands opened fire upon the deceased Vaibhav Tiwari, due to which he fell down. By that time, complainant and other witnesses reached on the spot, then both the accused persons ran away making further fires. Immediately injured Vaibhav Tiwari was taken to Ram Manohar Lohia Hospital in an Alto Car where he was declared dead.

While pressing the third bail application, learned counsel for the applicant submitted that the accused applicant has falsely been implicated in the present case. It is further submitted that as per the version of FIR, two assailants i.e. present applicant and coaccused Vikram Singh hit the fire at the deceased but as per the post mortem report of the deceased, there is only one entry wound of fire arm and one exit wound is there and the Doctor has opined that both wounds of entry and exit are in one line and corresponding to each other. So, it is a case of single shot. It is further submitted that statements of informant and other witnesses recorded under section 161 Cr.P.C. indicate that fire made by coaccused Vikram Singh hit the deceased.

Learned counsel for the applicant has referred to the statements of P.W.1 (complainant-eyewitness) and P.W.2 Aditya Singh recorded on 6.12.2019 and 3.1.2020 respectively. In cross examination, P.W.1 has stated that there were two assailants namely Vikram Singh and present applicant (Suraj Shukla), but it is not clear as to who fired at the deceased and he could not see as to whose fire hit the deceased. He has also stated that he did not know the reason for the murder of his son (deceased). P.W.2. Aditya Singh in his examination-in-chief has stated that there were four persons involved in the alleged commission of crime.

Learned counsel for the applicant placed reliance on the judgment of Hon'ble Supreme Court rendered in (2012) 1 SCC 40, Sanjay Chandra Vs. Central Bureau of Investigation on the point that if charges are framed and trial has commenced, the accused applicant is entitled to be released on bail. Paras 19,21,22 and 40 are reproduced as under:-

"19. .........We are not impressed by this argument. In the aforesaid petition, the petitioner was before this Court before framing of charges by the trial court. Now the charges are framed and the trial has commenced. We cannot compare the earlier and the present proceedings and conclude that there are no changed circumstances and reject these petitions.

21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required."

Learned counsel for the applicant contended that there are 30 and certain other witnesses to be produced by the prosecution but till date only two witnesses have been examined, as such, the conclusion of trial will take more time. In this case, the trial court has framed the charge against the accused applicant on 30.5.2019 and the trial has commenced, hence the accused applicant is entitled to be released on bail pending trial in view of the judgment of Hon'ble Supreme Court referred to above.

Lastly, learned counsel for the applicant submitted that accused applicant is languishing in jail for last four years and he is neither a previous convict nor he has any criminal history. It is further submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.

Shri Ashok Kumar Sharma, learned AGA opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for th applicant.

Considering the facts and circumstances of the case as well as in view of the judgment of the Hon'ble Supreme Court referred to above, I am of the view that it is a fit case for bail.

Let the applicant Suraj Shukla involved in Case Crime No.1030 of 2017 under Sections 302,307,504,467,468,471 IPC, Police Station-Hazratganj, District-Lucknow be released on bail 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 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 applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) 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. is issued and the 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 of the Indian Penal Code.

(iv) The applicant 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 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 him in accordance with law.

Order Date :- 17.6.2021/GSY