Sheru @ Mahendra Thakur vs State Of U.P.
2022 Latest Caselaw 3126 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34240 of 2019
 

 
Applicant :- Sheru @ Mahendra Thakur
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Gopal Das Srivastava,Prabhat Kumar Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Gopal Das Srivastava, learned counsel for the applicant and Sri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Sheru @ Mahendra Thakur under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 62 of 2016, Special Sessions Trial No. 521 of 2016, for offence punishable under Sections 394, 302 of the Indian Penal Code, registered at Police Station- Shamshabad, District- Agra during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge/ Special Judge (Dacoity Affected Area), Court No. 18, Agra vide order dated 08.07.2019.

Brief facts of the present case are that the first information report dated 20.02.2016 has been lodged against unknown person by son of the deceased under Sections 394 and 302 of I.P.C. stating therein that when the first informant was returned from his duty and knock the gate of his house, but the gate was not opened inside, then with the help of neighbours, he entered into the house and saw that his mother was lying dead in a cot and the earrings and utensils of the house was in a haphazard position and cash which has been kept in the house was missing.

After lodging of the first information report, inquest proceedings of the body of the deceased was conducted on 20.02.2016 at 08:00 A.M.; postmortem of the deceased was conducted on 20.02.2016 at 02:30 P.M. As per postmortem report, cause of death is asphyxia as a result of strangulation, time of death was 2/3rd day prior to the postmortem. After recording the statement of the prosecution witnesses, charge-sheet has been submitted against the applicant and other co-accused Shri Niwas on 24.10.2016. The applicant was arrested on 31.07.2016.

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 argued that on the information of the police informer, the applicant was arrested on 31.07.2016 and he has been implicated in the present case on the basis of confessional statement of the co-accused Shri Niwas. It is next submitted that there is no direct or circumstantial or last seen evidence has been collected by the Investigating Officer during the course of investigation against the applicant to connect him in the present case. It is next submitted that no incriminating article has been recovered from the possession or pointing out of the applicant. It is next contended that after arrest of the applicant, police has been implicated in 6 other criminal cases against the applicant on the basis of confessional statement of co-accused.

It has also been submitted that co-accused, Shri Niwas having similar role, has already been enlarged on bail by the Coordinate Bench of this Court vide order dated 28.02.2017 in Criminal Misc. Bail Application No. 6409 of 2017 and the applicant is also entitled to be enlarged on bail on the ground of parity. 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) Applicant is not named in the first information report;

(b) After 5 months 10 days of the incident applicant and co-accused Shri Niwas, were arrested by the Police on the information of the Police informer;

(c) Except confessional statement, no direct or circumstantial or last seen evidence has been collected by the Investigating Officer during the course of investigation against the applicant to connect him in the present case;

(d) Co-accused Shri Niwas having similar role, has already been enlarged on bail by the Coordinate Bench of this Court;

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, Sheru @ Mahendra Thakur 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 :- 17.5.2022

Ishan