Anil vs State Of U.P.
2022 Latest Caselaw 4386 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 84 of 2022
 

 
Applicant :- Anil
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Dileep Singh Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Sushil Dubey, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of the applicant Anil under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 352 of 2021 for offence punishable under Sections 364, 302, 201 of the Indian Penal Code registered at Police Station Thathiya District Kannauj during pendency of the trial, after rejecting the bail application of the applicant by the Sessions Judge, Kannauj vide order dated 13.12.2021.

Brief facts of the case are that one missing report was made by the mother of the deceased which has been registered at G.D. Rapat No. 62 on 12.09.2021 at about 5:00 p.m. stating therein that her son Shiv Balak, aged 28 years left home with one Sanjeet (now co-accused) but he did not return thereafter. After lodging of the aforesaid missing report, First Information Report dated 01.11.2021 at about 19:12 hours pertaining to present case has been lodged by wife of the abductee against the applicant and two other named persons stating therein that on 10.09.2021 at about 5:00 p.m. her husband, Shiv Balak went from his house but he did not return whereafter, a missing report was lodged by the mother-in-law on 12.09.2021 and on 10.09.2021 at about 9:00 p.m.to 10:00 p.m., she was having talk with her husband, who told her on mobile that he had been kidnapped by the applicant and others named persons, Sanjeet and Chunna, who are presently absconding.

After registering the case, statement of of the first informant has been recorded on 02.10.2021. Statement of the mother of the abductee on 07.10.2021, Statement of last scene witnesses, namely, Ravendra, Shiv Dutt and Manoj Kumar have been recorded on 07.10.2021 but without recovering the death body of the deceased, charge-sheet has been submitted against the applicant and two named person on 16.12.2021. The applicant was arrested on 11.10.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per missing report which was lodged by the mother-in-law of the first informant wherein she informed that first informant talked with the abductee prior to lodging of missing report but the name of the applicant was not mentioned in the missing report. It is further submitted that first information report has been lodged after 20 days of the missing report by the wife of the abductee. As per statement of first informant, she introduced three persons, namely, Ravendra, Shiv Dutt and Manoj Kumar, who alleged to have seen her husband, Shiv Balak being abducted by the applicant and two others, namely, Sanjeet and Chunna, as per statement of last seen witness. They had seen the abductee with co-accused Sanjeet at relevant time while the applicant and other co-accused were going behind the motorcycle.

It is further submitted that no incriminating article has been recovered from the possession of the applicant. It is further submitted that alleged recovery of Spade, slippers (Chappal), Pan Card. Adhaar Card, Bank Pass-book of the abductee has been made from pointing out of co accused Sanjeet. He has next argued that the applicant has no criminal history to his credit. If the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court.

Per contra, learned AGA 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) missing report was lodged by the mother of the deceased which had been registered at G.D. Rapat No. 62 on 12.09.2021 at about 5:00 p.m. with regard to missing of her son Shiv Balak after two days of missing, stating that he went from his house with co-accused Sanjeet;

(b) First Information Report dated 01.11.2021 at about 19:12 hours has been lodged by the wife of the abductee after after 20 days of the missing of her husband;

(c) name of the applicant for the first time surfaced after 20 days of missing of Shiv Balak;

(d) Statement of last scene witnesses, namely, Ravendra, Shiv Dutt and Manoj Kumar have been record on 07.10.2021;

(f) death body of the deceased has not been recovered during investigation.

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, Anil 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 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 :- 27.5.2022

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