Allahabad High Court
Bindesh Kushwaha vs State Of U.P. on 21 October, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42282 of 2022
Applicant :- Bindesh Kushwaha
Opposite Party :- State of U.P.
Counsel for Applicant :- Brijesh Kumar Mishra
Counsel for Opposite Party :- G.A.,Ajay Bahadur Yadav
Hon'ble Manish Mathur,J.
Heard learned counsel for the applicant, learned counsel for the informant and learned AGA for the State and perused the record.
The present bail application has been filed by the applicant seeking enlargement on bail in Case Crime No. 120 of 2022, under Sections 302, 120B, 34 IPC, Police Station Khampar, District Deoria.
As per the prosecution case informant's brother was sitting near an under-construction shop when two unknown persons came on bike and fired upon brother of the informant, who died. The FIR was lodged against unknown persons. The investigation proceeded in which name of two unidentified assailants has been determined as Nitish Kushwaha and Sujeet Shah. Nitish Kushwaha was arrested on 19.06.2022 and in his confessional statement the name of applicant has figured as being conspirator who provided fire arms for commissioning of the offence.
Learned counsel for the applicant submits that role of firing has been assigned to Sujeet Shah while role of driving the bike has been assigned to Nitish Kushwaha. It is contended that the name of applicant has surfaced in the confessional statement of Nitish Kushwaha but no recovery of any kind has been made from the applicant. It is also submitted that the motive of alleged offence is stated to be the enmity between Sanjeev Kushwaha, who was running some investment company in which the deceased has made some investment. Submission is that there is no criminal history of the applicant. Argument is that the neither the role of firing is assigned to the applicant nor any recovery has been made from him. It is further argued that the applicant is in jail since 3.7.2022 and the trial is not likely to conclude shortly and that the applicant undertakes that he will not misuse the liberty of bail and will cooperate in the conduct of trial.
Learned AGA as also learned counsel for the informant opposes the bail application by submitting that the applicant participated in the conspiracy to eliminate the deceased. It is further submitted that a sum of Rs.1 lac was provided to Nitish Kushwaha and the applicant was the person who arranged fire arms.
Learned A.G.A. appearing on behalf of State and learned counsel for informant opposed bail application. Learned counsel for informant has also submitted that complicity of the applicant is clearly made out from the confessional statement of co-accused Nitish Kushwaha and it was in fact the applicant who had supplied weapons for commissioning of the crime. It is submitted that the copy of C.D.R. has not bee annexed indicating call details of the applicant with the co-accused.
6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that the aspect of call details and making out of conspiracy on the basis of same is required to be proved and corroborated by evidence during trial and no comment thereupon can be made at this stage. Role of firing has been assigned to Sujeet Shah who came on bike driven by Nitish Kushwaha; the motive has been attributed to Sanjeev Kushwaha; neither any recovery has been made from the applicant nor any material has been collected against him; implication of applicant is based only on confessional statement of co-accused; and has no criminal history without commenting any further upon merits of the case, this Court is of the opinion that the applicant is entitled to be released on bail, at this stage. Above observations made in the bail order shall, however, not be construed as expression of opinion, on the merits, at the stage of trial.
7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
Let the applicant - Bindesh Kushwaha involved in aforesaid case crime be released on bail on his 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant 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 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 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 applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(v) In case the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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 of the Indian Penal Code.
(vi) The applicant shall remain present, in person, before the trial court on the 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 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 against him in accordance with law.
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 applicant to prison.
Accordingly, the present bail application is allowed.
Order Date :- 21.10.2022
Prabhat
