Pankaj vs State Of U.P.
2022 Latest Caselaw 9030 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33308 of 2022
 

 
Applicant :- Pankaj
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Indra Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vivek Chaudhary,J.

Heard Indra Kumar Singh, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant-Pankaj under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No.149 of 2021 for offence punishable under Sections 396, 412 of the Indian Penal Code, registered at Police Station Hari Parvat, District Agra, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge/ Special Judge (DAA Act), Court No.3, Agra vide order dated 12.7.2022.

Brief facts of the case are that the First Information Report dated 13.4.2021 at 14.58 hours has been lodged by brother of the deceased against three male and one female unknown persons under Sections 302, 394 IPC stating that on 12.4.2021 at 11 p.m. three male and one female unknown persons came into the house of the brother of the first informant which is situated in an apartment and they also took meals in his house. In the morning neighbour informed the first informant about the incident and after reaching the place of incident he saw dead body of his brother lying in a room and scene of the house was haphazard. According to the FIR, unknown persons have murdered his brother and looted the articles.

After lodging of the FIR, inquest of the body of the deceased was conducted on 13.4.2021 at 13.20 hours and postmortem of the body of the deceased was also conducted on 13.4.2021 at 5.30 p.m. Cause of death is asphyxia as a result of smothering and time of death was 18 hours prior to the postmortem. After recording the statement of the first informant Chaukidar of apartment Sri Ram and other witnesses and after making a recovery of mobile and cash, charge sheet has been submitted against the applicant and other five persons on 22.7..2021. The applicant was arrested on 15.5.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in this case due to ulterior motive. It is further submitted that co-accused Sachin was arrested on 13.5.2021 after being apprehended on the basis of vehicle involved in the present case. There is no evidence collected with regard to the articles and cash which have been looted by the unknown assailants. The applicant has no concern with the vehicle in question of which the owner is co-accused Sachin. No incriminating article has been recovered from the possession or pointing out of the applicant. The name of applicant has came to light in the statement of Avdhesh Kumar who is already granted bail by this Court on 11.5.2022 in Crl. Misc. Bail Application No.51997 of 2021. The applicant is languishing in jail since 16.5.2021 having no criminal history to his credit. If the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegation involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) The FIR has been lodged against three male and one female unknown persons by the brother of the deceased;

(b) The applicant has no concern with the vehicle which is alleged to have been recovered in the present case;

(c) The name of the applicant has been surfaced on the basis of confessional statements of co-accused Sachin;

(d) Prosecution has not collected any evidence with regard to the articles and cash which have been looted by the assailants;

(e) No incriminating article of the present case has been recovered from the possession or pointing out of the applicant.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, Pankaj be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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

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

Order Date :- 3.8.2022

Rajneesh JR-PS)

(Vivek Chaudhary, J.)