Laxmi Prasad Kushwaha @ Chhotu vs State Of U.P. Through Secretary ...
2022 Latest Caselaw 3119 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10257 of 2022
 

 
Applicant :- Laxmi Prasad Kushwaha @ Chhotu
 
Opposite Party :- State Of U.P. Through Secretary Home
 
Counsel for Applicant :- Vijay Bahadur Shivhare
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Vijay Bahadur Shivhare, learned counsel for the applicant and Shri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Laxmi Prasad Kushwaha @ Chhotu under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 473 of 2021 for offence punishable under Sections 304, 337, 338, 427 of the Indian Penal Code and Section 177, 184, 185 of Motor Vehicle Act, registered at Police Station Kotwali Mahoba, District Mahoba, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Mahoba vide order dated 20.1.2022.

Brief facts of the case are that the First Information Report dated 8.11.2021 has been lodged by brother of the deceased against the applicant who was driver of vehicle No. UP 95E 8070, under Section 279, 337, 338, 304-A, 427, IPC and Section 177, 184, 185 of Motor Vehicle Act, stating therein that on 7.11.2021 at 5.30 p.m. first informant was waiting for shaving in front of the shop of Barber. While waiting, at about 5.45 p.m., one scooty, which was driven by his neighbour Ankit Kushwaha, was coming towards Hamirpur road. Brother of the first informant Rahul Rai was pillion rider. In front of lockup gate of the Civil Court, one Mahindra Xylo UP 95E 8070, which was driven by its driver rashly and negligently, hit the scooty due to which brother of the first informant Rahul Rai sustained grievous injuries on account of which he died on the spot. Scooty driver Ankit Kushwaha has also sustained injuries. Rahul Rai and Ankit Kushwaha have been taken to District Hospital where Rahul Rai was declared to have died by the doctor and Ankit Kushwaha has been referred to District Hospital, Jhansi. The public caught the driver of the offending vehicle, who was found intoxicated and thus, he was handed over in the custody of the police.

After lodging the first information report, inquest of the body of the deceased was conducted on 8.11.2021 at 10.15 a.m. Postmortem of the body of the deceased was conducted on 8.11.2021 at 11.40 a.m. After recording the statements of the owner and driver of the Xylo car, first informant and other prosecution witnesses, charge sheet has been submitted against the applicant on 24.12.2021. The applicant was arrested on 14.11.2021 after six days of the incident.

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 as per allegation of first information report, police has arrested the applicant on the spot at the time after the incident, but he has not been arrested on 8.11.2021. The arrest was made on 14.11.2021. The applicant is student of B.A. IInd Year, aged about 19 years. It is the case of the prosecution that the sister of the applicant was ill and he was going to the clinic of doctor, on the way he had taken lift in the xylo car. The applicant has no concern with the present vehicle. The applicant is not driver of the said vehicle and he has no licence to drive the vehicle.

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 FIR 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) First information report has been lodged under Section 279, 337, 338, 304-A, 427, IPC and Section 177, 184, 185 of Motor Vehicle Act;

(b) Charge sheet has been submitted against the applicant under Section 304, 337, 338, 427, IPC and Section 177, 184, 185 of Motor Vehicle Act;

(c) The incident took place on 7.11.2021 at 5.30 p.m. and the first information report has been lodged on 8.11.2021 at 11.43 a.m.;

(d) The applicant was arrested on 14.11.2021.

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, Laxmi Prasad Kushwaha @ Chhotu 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 :- 17.5.2022

T. Sinha