Sanjeev Kumar Kushwaha vs State Of U.P.
2022 Latest Caselaw 21122 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45091 of 2022
 

 
Applicant :- Sanjeev Kumar Kushwaha
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pawan Kumar Rao
 
Counsel for Opposite Party :- G.A.,Ajay Bahadur Yadav,Vijay Kumar
 

 
Hon'ble Manish Mathur,J.

1. Supplementary affidavit filed today in Court on behalf of applicant explaining previous criminal history is taken on record.

2. Heard Mr. O.P. Singh (Senior Advocate) assisted by Mr. Pawan Kumar Rao, learned counsel for the applicant, Mr. Rajesh Kumar Dubey, learned counsel for the informant as well as learned AGA for the State and perused the record.

3. The present bail application has been filed by the applicant seeking enlargement on bail in Case Crime No. 120 of 2022, under Sections 302, 120B, 34 IPC, Police Station Khampar, District Deoria.

4. As per the prosecution case informant's brother was sitting near an under-construction shop when two unknown persons came on bike and fired upon brother of the informant, who died. The FIR was lodged against unknown persons. The investigation proceeded in which name of two unidentified assailants has been determined as Nitish Kushwaha and Sujeet Shah. Nitish Kushwaha was arrested on 19.06.2022 and in his confessional statement the name of applicant has figured as being conspirator who provided fire arms for commissioning of the offence.

5. Learned counsel for applicant submits that FIR has been lodged against unknown persons and subsequently in the extra judicial confessional statement of Nitish Kushwaha, role of firing has been assigned to Surjeet Shah while that of driving the motor-cycle has been assigned to Nitish Kushwaha. It is submitted that applicant's name has been introduced only on the basis of alleged confessional statement of Nitish Kushwaha, but there is no recovery of any kind made from the applicant although motive has been assigned to applicant in view of earlier financial dispute. It is submitted that even the role of firing has not been assigned to the applicant. It is submitted that even as per the alleged confessional statement of Nitish Kushwaha, there is no role ascribed to the applicant of having any involvement with the common intention and conspiracy to murder the deceased. It is submitted that even the alleged confessional statement merely indicates presence of co-accused at his house with role of supply of arms being attributed to one Badal Kushwaha who had already been admitted to bail by coordinate bench of this Court passed in Criminal Miscellaneous Bail Application No.44947 of 2022. As such, it is submitted that except for motive, there is no direct or even indirect evidence making out a case against the applicant under sections 120B and 34 IPC. It is submitted that applicant is in jail since 19.06.2022 and as yet only charge-sheet has been filed. It is submitted that the previous criminal history pertains to a case under the Negotiable Instruments Act registered in State of Bihar at time when the applicant was already under incarceration in the present case and as yet even summons had not been issued.

6. Learned AGA and learned counsel for informant have vehemently opposed bail application with the submission that although FIR has been registered against unidentified person but during the course of investigation, co-accused Nitish Kushwaha was arrested and in his confessional statement, has clearly admitted to being a participant in the murder with clear motive being attributed to applicant. It is submitted that the applicant was an active participant in the organization of criminal conspiracy to murder the deceased. It is also submitted that a copy of CDR as brought on record in the counter affidavit clearly indicates phone call interaction between the applicant and co-accused particularly at the time of incident. As such, it is submitted that the crime is being of heinous in nature with active participation of applicant, no indulgence is required to be granted.

7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"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."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

8. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that FIR has been lodged against unidentified person and applicant's name has been introduced in the alleged confessional statement of co-accused Nitish Kushwaha who has indicated presence of applicant allegedly during the planing and conspiracy to murder the deceased. The admissibility of confessional statement of co-accused in terms of section 26 of the Evidence Act is required to be corroborated by evidence during the course of trial. Apparently even in the alleged confessional statement, neither the role of supply of money nor the supply of Arms to Nitish Kushwaha have been admitted by him. At this stage, it appears from the record that except for the alleged confessional statement of Nitish Kushwaha there is no other direct evidence against the applicant although the applicant has been named by the eye witness Raju and Ashish in their subsequent statements recorded under section 161 Cr.P.C. which also however only indicates motive on the part of applicant who is in jail since 19.06.2022 with only charge-sheet having been filed as yet. Co-accused, namely Bheem Kushwaha, Badal Kushwaha, Bindesh Kushwaha, Pankaj Kumar Singh and Amrendra Kumar Singh have already been admitted to bail by Coordinate Benches of this court passed in Criminal Miscellaneous Bail Applications No.45843 of 2022, 44947 of 2022, 42282 of 2022, 45845 of 2022 and 41795 of 2022 respectively.

9. Let the applicant Sanjeev Kumar Kushwaha involved in aforesaid case crime 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) 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.

(iv) 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.

(v) 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.

(vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (1) opening of the case, (2) framing of charge and (3) 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.

The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

Accordingly, the present bail application is allowed.

Order Date :- 15.12.2022

Subodh/-