Shiv Kumar Alias Chhatrapal S/O ... vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 7742 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7289 of 2022
 

 
Applicant :- Shiv Kumar Alias Chhatrapal S/O Dalchandra
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home
 
Counsel for Applicant :- Sudhakar Prasad Tiwari,Ram Singh,Ramkripal Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Ram Singh, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

This bail application has been moved by the accused/applicant-Shiv Kumar Alias Chhatrapal for grant of bail, in Case Crime No. 260 of 2007, under Sections 302, 201 and 120-B I.P.C., Police Station Asiwan, District Unnao, during trial.

Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication, which is also evident by the fact that after lodging of the first information report in the investigation no 'iota' of evidence was found against the applicant and thus, the investigating officer has exonerated him and did not file charge-sheet against the applicant.

It is further submitted that it was after the submission of the charge sheet and during the course of trial on an application moved by the prosecution under Section 319 Cr.P.C., the applicant was summoned by the trial Court vide order dated 18.03.2008 for being tried for the offences under Sections 302, 201 and 120-B I.P.C. However, the said order passed by the trial Court under Section 319 Cr.P.C. was challenged by the applicant before a co-ordinate Bench of this Court by filing 482 Cr.P.C. Application No. 2119 of 2008 and vide order dated 18.06.2008 passed therein the implementation of the order dated 18.03.2008 was stayed. However, unfortunately the Application under Section 482 Cr.P.C. was dismissed vide order dated 23.05.2013.

It is further submitted that aggrieved by the dismissal of the Application under Section 482 Cr.P.C. the applicant had moved an application for modification/recall of the said order, however, the same was also not found favour and a co-ordinate Bench has rejected the Crl. Misc. Application No. 56477 of 2018 moved in 482 Cr.P.C. Application No. 2119 of 2008 vide order dated 23.08.2018.

It is vehemently submitted on behalf of the applicant that applicant could not get the knowledge of the rejection of his recall/modification application on 23.08.2018 and as soon as he got the information of issuance of the coercive process by the trial Court he immediately surrendered before the trial Court on 04.04.2022 and since then he is languishing in jail in this case.

While drawing the attention of this Court towards the order dated 29.03.2022 of the trial Court, a copy of which has been placed at Page No. 54 of the paper book, it is submitted that it was for the very first time the coercive process has been issued by the trial Court against him. However, the order of the trial Court is self-contradictory as in the first part of the order, it is observed that the process issued by the trial Court is not served on the applicant and in the second part process of N.B.W. and 82 Cr.P.C. has been issued. Thus, there was no reasonable ground on the basis of which the process of N.B.W. or 82 Cr.P.C. could have been issued against the applicant.

It is further submitted that the co-accused persons of the crime namely Shiv Prakash @ Bhau, Sitaram and Dalchandra have been acquitted by the trial Court vide order dated 30.08.2009 and the same set of evidence is available against the applicant and primafacie it doesn't appear that the applicant may be convicted in this case.

It is also submitted that the applicant is in jail in this case since 04.04.2022 and he is ready to co-operate in the early disposal of the case. He is not having any criminal history and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

Learned A.G.A. on the other hand submits that the applicant has remained abscond for a long time and, therefore, he is not entitled to be released on bail.

Having heard learned counsel for the parties and having perused the record, few facts and admitted to the parties. It is admitted that the applicant was not charge-sheeted and during the course of trial on the basis of an application moved by the prosecution under Section 319 Cr.P.C. he was summoned by the trial court by passing an order dated 18.03.2008, however, the same was challenged by filing an Application u/s 482 Cr.P.C. and the proceedings so far as the applicant was concerned was stayed. The 482 Cr.P.C. Application was, however, dismissed on 23.05.2013 and thereafter recall/modification application of the same was also filed, which was ultimately rejected on 23.08.2018. Therefore, non-appearance of the applicant before the trial Court till 2018 appears to be justified. It is contended on behalf of the applicant that he was not having any knowledge of the dismissal of his modification application on 23.08.2018 and in this regard emphasis has been given on the order sheet of the trial Court dated 29.03.2022, which shows that till 29.03.2022, no process of the trial Court was ever served on the applicant and without there being any service of the coercive process, 82 Cr.P.C. and process of N.B.W. was issued.

Be that as it may, the applicant has been summoned under Section 319 Cr.P.C. The reason for non-appearance before the trial Court has been sufficiently explained. Co-accused persons of the crime have been acquitted by the trial Court by passing a separate judgments. Applicant is in jail in this case since 04.04.2022 without any criminal antecedents and he has voluntarily surrendered before the trial Court. The presence of the applicant could be secured before the trial court by placing adequate conditions.

Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed.

Let the accused/applicant-Shiv Kumar Alias Chhatrapal involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(iii) 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.

Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.

Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case.

Order Date :- 22.7.2022

Praveen