Allahabad High Court
Jitendra @ Neetu vs State Of U.P. on 20 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40740 of 2021
Applicant :- Jitendra @ Neetu
Opposite Party :- State of U.P.
Counsel for Applicant :- Rajendra Kumar Pandey,Ayush Mishra,Gaurav Singh Tomar,Inder Pal Singh Tomar,Prabha Shanker Mishra
Counsel for Opposite Party :- G.A.,Ramesh Kumar Pandey
Hon'ble Manish Mathur,J.
1. Heard Mr. Gaurav Singh Tomar learned counsel for applicant, Mr. Ramesh Kumar Pandey learned counsel for informant and learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No. 1141 of 2019 under Section 302 IPC, P.S. Modi Nagar, District Ghaziabad.
3. As per contents of FIR, incident has occurred on 18th December, 2019 at about 6.15 P.M. when the son of first informant was sitting in the shop adjacent to the house. It is alleged that the applicant along with co-accused came on a motorcycle and shot at the first informant's son due to which he suffered gun shot injury in his chest and as a result thereof passed away. Applicant has been taken into custody on the basis of being nominated in the F.I.R.
4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him and that there is actually no eye witness account. It is submitted that the first informant does not introduce himself as an eye witness account which role has been attributed to his wife but the F.I.R. as well statement of first informant under Section 161 Cr.P.C. clearly indicates wife being present inside the house along with first informant and reached the spot only after hearing the gun shot whereafter it has been stated that applicant was seen fleeing from the spot. It is submitted that there are various inconsistencies in the prosecution version particularly with regard to presence of another alleged eye witness Manmohan Singh who is said to be a family member but despite introduction of the said person as eye witness, he does not find any mention in the F.I.R., which even otherwise has been filed after inquest has been performed. It is submitted that alleged recovery of fire arm from the applicant does not have any independent witness and as yet no F.S.L. report is available although charge sheet against the applicant has been filed and statement of P.W.1 has been completed while applicant is under incarceration since 11th January, 2020. It is submitted that post mortem report also does not corroborate allegations as levelled in the F.I.R. and in the statements recorded under Section 161 Cr.P.C.
5. Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have opposed bail application with the submission that not only is the applicant nominated in the F.I.R. but there is clear eye witness account with regard to his involvement in the crime alleged. It is submitted that fire arm used in the murder of first informant's son has also been recovered from the applicant although F.S.L. report has not yet been obtained. It is further submitted that trial has been delayed only on account of first informant himself who failed to cross examine P.W.1 on a number of occasions as indicated in the certified copy of order sheet.
6. 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 although allegation has been levelled against applicant of having shot son of first informant on 18th December, 2019 whereafter he was immediately taken to the hospital and was pronounced dead but the F.I.R. itself has been filed on 19th December, 2019 although police presence is indicated at the time of inquest. It also appears that although allegation of single gun shot by the applicant has been levelled in the F.I.R. but the post mortem report indicates other injuries as well including a lacerated wound on the body which remains unexplained. F.I.R. also does not indicate the presence of Manmohan Singh another alleged eye witness and his name is in the F.I.R. whose name has been subsequently introduced in the statement recorded under Section 164 Cr.P.C. for inexplicable reasons. At this stage, there appears to be certain contradictions in the prosecution version although same is subject to evidence during stage of trial. The applicant is under custody since 11th January, 2020.
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. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicant Jitendra @ Neetu involved in the 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 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.
Trial court is directed to expedite the trial without granting undue adjournments.
Order Date :- 20.12.2022
Prabhat
