Allahabad High Court
Kush vs State Of U.P. on 16 January, 2023
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32287 of 2022
Applicant :- Kush
Opposite Party :- State of U.P.
Counsel for Applicant :- Atul Singh
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and learned Additional Government Advocate representing the State.
By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 66 of 2022, under sections 302, 201 IPC, Police Station Shivkuti, District Allahabad, seeks enlargement on bail during the pendency of trial.
As per prosecution case, in brief, informant has lodged an FIR on 26.03.2022 with regard to an incident which took place on 25.03.2022 against the present applicant Kush alleging inter-alia that on 24.03.2022 at about 02:00 am, applicant came to her house and insisted her husband to come with him. Since it was odd time, therefore, she forbidden but the the applicant took her husband with him and he did not return. On 25.03.2022 at about 04:00 pm, when she inquired about her husband, applicant told that he left him near the canal. An effort was made by her and his neighbour to search her husband, on which, his dead body was found in the agricultural field of the applicant near the river.
The main substratum of argument of learned counsel for the applicant is that the applicant has been falsely implicated in this case. There was no motive on the part of the applicant to commit such a crime and deceased had not gone with the present applicant. Referring the post-mortem report, it is argued that no external injury was found on the body of the deceased and the cause of death was due to drowning, therefore, applicant is entitled to be released on bail.
Per contra, learned A.G.A. for the State opposed the prayer for bail of the applicant by contending that as per the prosecution case, applicant took the deceased with him on 24.03.2022 at 02:00 am and the deceased was lastly seen in the company of the applicant. During the course of investigation, said fact has been reiterated by the witness Mohan Lal, Priyanka, Muskan and Sheelu who are father, daughters and sister of the deceased. It is also argued that the dead body of the deceased was recovered on 26.03.2022 in which time of death is mentioned about two days which corroborates the prosecution story. It is also pointed out that the applicant in para no. 26 of the affidavit has mentioned that applicant is neither a previous convict nor has any criminal history whereas apart from this case, applicant has criminal history of following eleven cases:-
(i) Case Crime No. 01 of 2019, under Sections 60 of Excise Act, P.S. Shivkuti, District Prayagraj.
(ii) Case Crime No. 86 of 2020, under Sections 60(2) of Excise Act, P.S. Shivkuti, District Prayagraj.
(iii) Case Crime No. 12 of 2022, under Sections 60 of Excise Act, P.S. Shivkuti, District Prayagraj.
(iv) Case No. 51 of 2022, under Sections 2/3(1) of U.P. Control of Goondas Act, P.S. Shivkuti, District Allahabad.
(v) Case No. 47 of 2021, under Sections 2/3(1) of U.P. Control of Goondas Act, P.S. Shivkuti, District Allahabad.
(vi) Case under Section 110G Cr.P.C., P.S. Shivkuti, District Allahabad.
(vii) Case Crime No. 10 of 2007, under Section 60 of Excise Act, P.S. Shivkuti, District Prayagraj.
(viii) Case Crime No. 67 of 2005, U/s 60 of Excise Act, P.S. Shivkuti, District Prayagraj.
(ix) Case Crime No. 68 of 2005, U/s 18, 22 of NDPS Act, P.S. Shivkuti, District Prayagraj.
(x) Case Crime No. 90 of 2006, U/s 60(2) of Excise Act, P.S. Shivkuti, District Prayagraj.
(xi) Case Crime No. 254 of 2013, U/s 60 of Excise Act, P.S. Shivkuti, District Prayagraj.
Lastly it is submitted that in view of criminal history of the applicant, he cannot be said to be a law abiding person, as such, bail application of the applicant is liable to be rejected.
Having heard learned counsel for the parties and perusing the record, I find that as on date, informant as well as other family members as noted above, have clearly stated that applicant took the deceased with him on 24.03.2022 at early in the morning but later on he did not return and his dead body was found in the field of the applicant. The post-mortem report corroborates the date and time of the incident. As on date, there is no material on record to presume the false implication of the applicant who has a long criminal history of aforesaid eleven cases, as noted above.
In view of judgment of Hon'ble the Apex Court in the case of Neeru Yadav vs. State of U.P. (2015) 3 SCC 527, criminal antecedents of the accused cannot be ignored while deciding bail application, discretionary powers of Courts to grant bail must be exercised in a judicious manner in case of a habitual offender. The said judgment has been further followed in a recent judgment of Apex Court in the case of Sudha Singh vs. State of U.P. and another, 2021 (4) SCC 781.
Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, criminal history of the applicant and severity of punishment, I do not find any good ground to release the applicant on bail.
Accordingly, the bail application is rejected at this stage.
It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.
Order Date :- 16.1.2023
Saurabh
