Allahabad High Court
Atul @ Khaba vs State Of U.P. And Another on 16 May, 2022
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL APPEAL No. - 577 of 2022
Appellant :- Atul @ Khaba
Respondent :- State of U.P. and Another
Counsel for Appellant :- Nagesh Dwivedi,Abhishek Kumar,Kunjesh Kumar Dubey
Counsel for Respondent :- G.A.,Rajesh Kumar Patel
Hon'ble Samit Gopal,J.
Heard Sri Nagesh Dwivedi, learned counsel for the appellant, Sri Rajesh Kumar Patel, learned counsel for the opposite party no.2 and Sri S.B. Maurya, learned counsel for the State and perused the material on record.
The present bail application has been filed on behalf of the appellant for release on bail in Criminal Appeal under Section 14-A (2) of Scheduled Cast and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which has been preferred by the appellant-Atul @ Khaba against the judgment and order dated 3.1.2022 passed by Special Judge (S.C./S.T. Act)/Additional Sessions Judge, Allahabad in Case Crime No.207 of 2021, under Sections 147, 148, 149, 323, 504, 506, 307, 341 IPC and Section 3(2)V of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Police Station Shivkuti, District Prayagraj, whereby the bail application of the appellant has been rejected.
Learned counsel for the appellant argued that the appellant has been falsely implicated in the present case. The FIR was lodged by Amarbahadur Gautam, the alleged injured on 21.9.2021 against the appellant and five other accused persons stating therein that on 20.9.2021 at about 8 p.m. he was going on a motorcycle towards Civil Lines Bus Stand and on the way he was stopped at Taliarganj Cantt after which the appellant fired on him from his fire-arm but he was saved and then co-accused Pappu Tiwari assaulted on him with a rod of Gym on his head due to which he received serious injuries. Thereafter co-accused Appu Tiwari, Archit Shukla and Anil Kumar Tripathi assaulted with hockey stick after which he received several injuries. Deepu Tiwari and other accused persons used caste related words. The allegations in the FIR are false. The first informant who is only injured person subsequently in his statement under Section 161 Cr.P.C. has given up his earlier statement that appellant fired from his fire-arm and stated that all the accused persons used caste related words and abused him and assaulted him with a rod of Gym on his head. In so far as the appellant is concerned, the role assigned to him is not consistent. The appellant is shown to be involved in a case previously which was between the same parties in which his appeal is pending before this Court with the prayer for bail. The allegations so far as the appellant is concerned, are totally vague and false, the same are not consistent as per the FIR and statement under Section 161 Cr.P.C. The appellant has no criminal history as stated in para 29 of the affidavit in support of bail application. The appellant is in jail since 01.11.2021.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail. Learned counsel for the first informant stated that the appellant is named in the FIR and in the statement of the first informant recorded under Section 161 Cr.P.C. and there is specific allegation against him.
After having heard the learned counsel for the parties and perusing the records, it is evident that in the FIR the appellant is said to have fired from a fire-arm on the first informant which missed him and subsequently first informant in his statement under Section 161 Cr.P.C. has given up the earlier version that appellant fired from his fire-arm and stated that all the accused persons used caste related words and abused him and assaulted him with a rod of Gym on his head.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the appellant may be enlarged on bail.
Let the appellant-Atul @ Khaba be released on bail in the aforesaid case crime number on 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 appellant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The appellant 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 appellant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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 appellant will not misuse the liberty of bail in any manner whatsoever. In case, the appellant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if appellant 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 I.P.C.
(v) The appellant shall remain present, in person, before the trial court on 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 appellant 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the appellant.
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 appellant to prison.
Accordingly, the appeal succeeds and the same stands allowed.
The impugned order dated 3.1.2022 passed by Special Judge (S.C./S.T. Act)/Additional Sessions Judge, Allahabad is hereby set-aside.
(Samit Gopal, J.)
Order Date :- 16.5.2022
Gaurav
