Vijay vs State Of U.P.
2022 Latest Caselaw 2461 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49957 of 2021
 

 
Applicant :- Vijay
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Devansh Rathore,Romeshwari Prasad
 
Counsel for Opposite Party :- G.A.,Arun Kumar,Arun Kumar Sharma
 

 
Hon'ble Sanjay Kumar Pachori,J.

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

Heard Shri Romeshwari Prasad, learned counsel for the applicant, learned A.G.A. for the State, Shri Arun Kumar Sharma, learned counsel for the first informant and perused the material on record.

The present bail application has been filed on behalf of applicant Vijay under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 0267 of 2020 for offence punishable under Sections 147, 148, 149, 302 of the Indian Penal Code, registered at Police Station Ghiror, District Mainpuri, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, Court No. 1, Mainpuri vide order dated 5.4.2021.

Brief facts of the case are that the First Information Report dated 3.11.2020 has been lodged by father of the injured Lakhan Dixit against Bhola and Bhura @ Narendra under Section 307, IPC stating therein that on 3.11.2020 son of the first informant Lakhan Dixit came home from Mainpuri by motorcycle. After sometime he received a call and then he went to Village Hadai by motorcycle. When he reached in front of the house of Rakesh Rai, at 7.00 p.m. named co-accused Bhola and Bhura @ Narendra having 315 bore country made pistol in their hands fired several shots upon his son. Son of the first informant sustained grievous fire arm injuries. Sandeep and Ramu, who had seen the incident, immediately took the injured Lakhan to the hospital.

After lodging of the first information report, medical examination of the injured Lakhan was conducted on 3.11.2020 at 10.45 p.m. at Pushpanjali Hospital and Research Centre Private Ltd., Agra. After discharging from the hospital, statement of the injured Lakhan Dixit was recorded on 24.12.2020 at his home after about 51 days of the incident. After death of the injured Lakhan Dixit, inquest of the body of the deceased was conducted on 23.1.2022 at 9.45 a.m. on the basis of the information received from Alok Dixit, who is cousin brother of injured Lakhan Dixit. Postmortem of the body of the deceased was conducted on 23.1.2021 at 11.30 a.m. After recording the statements of Alok Dixit, Sandeep and Ramu and other prosecution witnesses under Section 161, Cr.P.C., charge sheet has been submitted against two named and three unknown persons including the applicant on 20.2.2021. The applicant was arrested on 15.2.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. Applicant is not named in the first information report. On 24.12.2020 after 51 days of the incident when the injured was discharged from the hospital, in his statement under Section 161, Cr.P.C. he assigned the role of firing to all the accused persons including the applicant. After delay of 76 days Alok Dixit and after delay of 87 days on 31.1.2021, Sandeep and Ramu have assigned role of firing to the applicant on the back of the deceased. It is further argued that no incriminating article has been recovered from the possession of the applicant. Named co-accused Bhola and Bhura @ Narendra are in judicial custody and fire arm has been recovered on the pointing out of the named accused persons. It is further argued that the injured has died after 80 days of the incident due to shock and septicemia. It is further argued that co-accused Vipin @ Bantu and Sanjay @ Bhallu, who were not named in the first information report, having similar role, have been granted bail by the Coordinate Benches of this Court vide orders dated 4.6.2021 and 9.9.2021 in Criminal Misc. Bail Application Nos. 21088 of 2021 & 28002 of 2021 respectively.

He has next argued that the applicant has criminal history of two cases, which have been registered after the present incident and the same have been explained in para 5 of the rejoinder affidavit. If the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submit that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit 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 applicant is not named in the first information report;

(b) Role of firing has been assigned to the applicant after 51 days of the incident by the injured Lakhan Dixit. Other prosecution witness Alok Dixit has assigned role of firing to the applicant after 76 days of incident and Sandeep, Ramu have assigned the role of firing to the back of the applicant after 80 days of the incident;

(c) First information report has been lodged under Section 307, IPC against Bhola and Bhura @ Narendra, who are in judicial custody;

(d) Co-accused Vipin @ Bantu and Sanjay @ Bhallu, who were not named in the first information report, having similar role, have been granted bail by the Coordinate Benches of this Court vide orders dated 4.6.2021 and 9.9.2021 in Criminal Misc. Bail Application Nos. 21088 of 2021 & 28002 of 2021 respectively.

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, Vijay 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/endeavour 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 alongwith 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 :- 11.5.2022

T. Sinha