Preetam Singh Kushwaha vs State Of U.P.
2022 Latest Caselaw 4909 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 49
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40399 of 2021
 

 
Applicant :- Preetam Singh Kushwaha
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vikas Tiwari,Gaurang Dwivedi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned counsel for the applicant has filed supplementary affidavit today, which is taken on record.

Heard Sri Gaurang Dwivedi, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Preetam Singh Kushwaha under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 152 of 2020, for offence punishable under Section 302 of the Indian Penal Code, registered at Police Station- Kailiya, District- Jalaun during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Jalaun vide order dated 19.08.2021.

Brief facts of the present case are that the first information report dated 16.11.2020 at 15:32 hours has been lodged by son of the deceased Satendra under Section 302, 34 of I.P.C. against Mahavir Sharan @ Ramu, Devendra Sngh and Manvendra Singh stating therein that on 05:30 P.M., he along-with his father Dev Singh was going for Darshan at Ratangarh Manta Mandir by motorcycle and when they reached near Kailiya Power House, the named co-accused persons armed with axe, halberd and gun met to the first informant and by obstructing to the first informant in the mid way, they dragged to the father of the first informant from motorcycle and abusing his father and on being objection they assaulted to the father of the first informant with intention to kill through axe, halberd and gun and they also committed marpit with the first informant and his father died on the spot. The aforesaid incident was seen by Chhotey Kushwaha, Varun Pratap Singh, and on their alarm the accused persons fled away from the spot by giving threat for dire consequences.

After lodging the first information report, the inquest proceedings of the deceased was commenced on 16.11.2020 at 16:40 hours, postmortem of the deceased was conducted on 17.11.2020 at 04:40 P.M. After recording the statement of the first informant, Chhotey Kushwaha, Varun Pratap Singh and other prosecution witnesses under Section 161 of Cr.P.C., the charge sheet has been submitted only against the applicant on 24.07.2021. The Investigating Officer has exonerated the name of co-accused Mahavir Sharan @ Ramu, Devendra Sngh and Manvendra Singh. The applicant was arrested on 11.07.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the Investigating Officer has exonerated the named co-accused Mahavir Sharan @ Ramu, Devendra Sngh and Manvendra Singh. It is further submitted that the first information report has been lodged by the eye witness of the incident, i.e., son of the deceased Satendra. It is further submitted that after six months of the incident, the Investigating Officer on the basis of statement of the Kalka Prasad and Badla Prasad without any cogent evidence has implicated the applicant in the present case. It is further submitted that as per statement of the first informant which has been recorded before the trial court as PW-1 and other eye witness Varun Pratap Singh as PW-2, they have stated that the murder of Dev Singh has been committed by Mahavir Sharan @ Ramu, Devendra Sngh and Manvendra Singh and there is no other persons are involved in the present incident.

He has next argued that the applicant has no previous criminal history and 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 allegations involved are very serious in nature and the delay in lodging the F.I.R. 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 Investigating Officer has exonerated the named co-accused Mahavir Sharan @ Ramu, Devendra Sngh and Manvendra Singh;

(b) After six months of the incident, the Investigating Officer on the basis of statement of the Kalka Prasad and Badla Prasad without any cogent evidence has implicated the applicant in the present case;

(c) As per statement of the first informant which has been recorded before the trial court as PW-1 and other eye witness Varun Pratap Singh as PW-2, they have stated that the murder of Dev Singh has been committed by Mahavir Sharan @ Ramu, Devendra Sngh and Manvendra Singh and there is no other persons are involved in the present incident;

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, Preetam Singh Kushwaha 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/endeavor 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 along-with 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 :- 3.6.2022

Ishan