Harendra vs State Of U.P.
2022 Latest Caselaw 3884 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9033 of 2022
 

 
Applicant :- Harendra
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Santosh Kumar Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri R.B. Mishra, 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 Harendra under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 416 of 2021 for offence punishable under Sections 302, 120-B of the Indian Penal Code, registered at Police Station- Khekada, District- Baghpat during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Baghpat vide order dated 31.01.2022.

Brief facts of the present case are that the first information report dated 28.09.2021 time 07:37 hours has been lodged by nephew of deceased Mahipal Singh against Brijesh and Sanjay, stating therein that on 28.09.2021 at 05:45 A.M. when his uncle Mahipal @ Nepal Singh had gone for a walk, as soon as he reached near the tube-well of Sagadi, Brijesh and Sanjay shot fire his uncle in the head with the intention of killing him. Due to which his uncle fell in a pool of blood on the spot. He took to his uncle to Delhi for treatment in injured condition.

After lodging the first information report, the injured Mahipal Singh @ Nepal Singh declared dead by the doctor in the hospital during the treatment. The inquest proceedings of the deceased was conducted on 28.09.2021 at 12:00 P.M. at Guru Tej Bahadur Hospital, New Delhi, postmortem of the deceased was conducted on 28.09.201 at Guru Tej Bahadur Hospital, New Delhi. After recording the statement of the first informant, Sandeep Manish, Kaptan, Anil Pawar, Krishna Pal Singh, Onkar Singh and other prosecution witnesses under Section 161 of Cr.P.C., charge sheet has been submitted against the applicant, Jaiveer, Monty @ Aayush and Kala @ Amit on 15.02.2022. The Investigating Officer has exonerated the named co-accused Brijesh and Sanjay. The applicant was arrested on 09.12.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The applicant is not named in the first information report and the first information report has been lodged against Brijesh and Sanjay, who have been exonerated by the Investigating Officer during the course of investigation. It is further argued that the matter rests on the circumstantial evidence. As per prosecution case, the role of criminal conspiracy has been assigned to the present applicant. There is no shred of evidence against the applicant with regard to complicity of the present crime. It is further submitted that he has been implicated in the present case on the basis of extra judicial confessional statement of the applicant. It is next contended that no incriminating article has been recovered from the possession or pointing out of the applicant.

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) First information report has been lodged against Brijesh and Sanjay;

(b) The named co-accused Brijesh and Sanjay have been exonerated by the Investigating Officer during the course of investigation and the charge sheet has been submitted against the applicant, Jaiveer, Monty @ Aayush and Kala @ Amit;

(c) The role of criminal conspiracy has been assigned to the present applicant;

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, Harendra 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 :- 24.5.2022

Ishan