Allahabad High Court
Ashutosh Mishra @ Machange vs State Of U.P. Thru. Prin. Secy. ... on 3 December, 2022
Bench: Ajai Kumar Srivastava-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 15
Case :- CRIMINAL APPEAL No. - 2064 of 2022
Appellant :- Ashutosh Mishra @ Machange
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 2 Others
Counsel for Appellant :- Rajiva Dubey,Pankaj Awasthi,Rohit Yadav,Syed Husain Abbas
Counsel for Respondent :- G.A.
Hon'ble Ajai Kumar Srivastava-I,J.
Heard Sri Rohit Yadav, learned counsel for the appellant, learned A.G.A. for the State and perused the entire record.
This Criminal Appeal under Section 14-A (2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned judgment and order dated 22.08.2022 passed by the learned IInd Additional Sessions Judge/ Special Judge, S.C./ S.T. Act, Lakhimpur Kheri in bail application No.129 of 2022 (Ashutosh Mishra @ Machange vs. State of U.P.) arising out of Case Crime No.177 of 2021, under Sections 323, 452, 504, 506, 325 I.P.C. and Sections 3 (1)(Da), 3(1)(Dha) S.C./ S.T. Act, Police Station Kotwali Mohammadi, District Kheri, whereby the bail application of the appellant has been rejected.
Vide order dated 01.09.2022 notices were directed to be issued to respondents No.2 and 3, which have been served upon them as per report dated 23.09.2022 furnished by the learned Chief Judicial Magistrate, Lakhimpur Kheri. However, no one has put in appearance on behalf of respondents No.2 and 3.
Learned counsel for the appellant has submitted that the first information report has been lodged against the appellant on the basis of false and fabricated facts. The accused/ appellant is innocent who has been falsely implicated in this case.
His further submission is that the entire allegation in the first information report is nothing but a concoction and completely false. The first information report bearing No.177 of 2021 came to be lodged against two named persons by respondent No.2, Smt. Chandni. There are general allegations of assaulting the husband of opposite party No.2 by the appellant and one other co-accused by lathi and danda. However, he submits that after investigation, charge sheet came to be laid against the present appellant only. The other co-accused stood exonerated during investigation.
Learned counsel for the appellant has drawn attention of this Court to the injury reports of respondents No.2 and 3 annexed to the instant application and has submitted that the injuries are simple in nature. The accused/ appellant is languishing in jail since 22.08.2022 who has no previous criminal history.
His further submission is that in case, the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial court in getting the trial concluded expeditiously. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.
Per contra, learned A.G.A. has vehemently opposed the prayer. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the appellant.
Having heard the learned counsel for the appellant, learned A.G.A. for the State and upon perusal of record, it transpires that there are general allegations of assaulting the injured against the appellant. The injuries are simple in nature. The accused/ appellant is languishing in jail since 22.08.2022 who has no previous criminal history.
Considering the aforesaid overall facts and circumstance of the case, without commenting upon merits, this Court of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.
Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 22.08.2022 passed by the learned IInd Additional Sessions Judge/ Special Judge, S.C./ S.T. Act, Lakhimpur Kheri in bail application No.129 of 2022 (Ashutosh Mishra @ Machange vs. State of U.P.) arising out of Case Crime No.177 of 2021, under Sections 323, 452, 504, 506, 325 I.P.C. and Sections 3 (1)(Da), 3(1)(Dha) S.C./ S.T. Act, Police Station Kotwali Mohammadi, District Kheri, is, hereby, set aside.
Let the appellant, Ashutosh Mishra @ Machange be released on bail in the aforesaid case crime number with the following conditions:-
(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.
(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-
(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.
(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) The appellant 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.
(iii) The appellant shall cooperate with investigation /trial.
(iv) The appellant 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.
(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.
(vii) The appellant shall remain present, 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 appellant 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.
(Ajai Kumar Srivastava-I, J.)
Order Date :- 3.12.2022
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