Allahabad High Court
Dinesh Nishad vs State Of U.P. on 3 January, 2023
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25816 of 2021
Applicant :- Dinesh Nishad
Opposite Party :- State of U.P.
Counsel for Applicant :- K.K.Rao,A.Z.Khan,Pradeep Kumar Srinette
Counsel for Opposite Party :- G.A.,Anjani Kumar Singh,Chandan Singh,Kamlesh Kumar Tiwari,Shweta Nishad
Hon'ble Dr. Gautam Chowdhary,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
This is the second bail application.
The first bail application was rejected by a co-ordinate Bench of this Court vide its order dated 6.8.2020 passed in Criminal Misc. Bail Application No.9011 of 2020.
The instant bail application has been filed on behalf of the applicant, Dinesh Nishad with a prayer to release him on bail in Case Crime No. 031 of 2019, under Sections 302, 147, 504 I.P.C., Police Station- Belipar, District- Gorakhpur, during pendency of trial.
Learned counsel for the applicant submits that applicant is innocent and he has been falsely implicated in the present case due to some ulterior motive. Learned counsel for the applicant submits that from the perusal of the panchyatnama, it is clear that the person who have given first information to police officer is Asgar Ali (ward boy) and not the complainant. Learned counsel for the applicant next argued that after lodging the F.I.R., dead body of the deceased send for post mortem on 30.01.2019 at 2:40 P.M. and its report reveals four fire-arm anti mortem injuries on the dead body of the deceased and cause of death is due to anti mortem fir arm injuries and time of death is about one day. Learned counsel for the applicant very fairly submits that during the course of investigation, P.W.-1, P.W.-2 and P.W.-3 turned hostile. Criminal history of the applicant has been explained in para 23 of the affidavit filed in support of the bail application. Applicant is languishing in jail since 8.2.2019 and in case, he is enlarged on bail he will not misuse the liberty of bail and shall cooperate with the trial.
Learned A.G.A. has opposed the bail prayer of the applicant but could not dispute the aforesaid facts.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and coupled with the fact that P.W.-1, P.W.-2 and P.W.-3 turned hostile and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail.
The bail application is allowed.
Let the applicant- Dinesh Nishad 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. That 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;
5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.
6. 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 Cr.P.C.
If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 3.1.2023
Sachin/-
