Allahabad High Court
Upendra Tiwari @ Upendracharya vs State Of U.P. on 2 January, 2023
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35445 of 2022
Applicant :- Upendra Tiwari @ Upendracharya
Opposite Party :- State of U.P.
Counsel for Applicant :- Amit Daga,Abhishek Kumar Jaiswal
Counsel for Opposite Party :- G.A.
Hon'ble Dr. Gautam Chowdhary,J.
Heard Sri Abhishek Kumar Jaiswal, learned counsel for the applicant, learned counsel for the State and perused the material on record.
This is third bail application. The Crl. Misc. First Bail Application No. 12219 of 2015 has been rejected on 10.4.2015 and Criminal Misc. IInd Bail application No. 16603 of 2017 has been rejected on 8.8.2017 respectively by Hon. Ramesh Sinha, J.
This is third bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Upendra Tiwari @ Upendracharya, seeking enlargement on bail during trial in connection with Case Crime No. 119 of 2014, under Sections 302, 201 I.P.C. registered at P.S.- Gopiganj, District- Bhadohi.
Learned counsel for the applicant submits that the applicant has been falsely implicated in the charges levelled against him and there is no direct evidence against the applicant. The name of the applicant has been surfaced in the extra judicial statement of village Pradhan after about one and half month of the alleged incident. It is submitted by learned counsel for the applicant that trial is progressing at a slow pace and has relied upon the judgment rendered by Hon'ble the Supreme Court in the case of Indrani Pratim Mukerjea Vs. Central Bureau of Investigation and another passed in Special Leave to Appeal (Crl.) No. 1627 of 2022 to submit that prolonged incarceration of a person as an under trial is against his fundamental rights under Article 21 of the Constitution of India. It is submitted that there is no occasion now for the applicant to tamper with any witness or to flee from judicial process. Further argued that in the present case no F.I.R. was lodged, only missing report was lodged. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It is further contended by learned counsel for the applicant that the applicant is languishing in jail since 29.06.2014 having no criminal history.
Per contra, learned AGA opposed the prayer for bail but admitted the facts that the applicant is in jail since last eight and half years.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Upendra Tiwari @ Upendracharya be released on bail in the aforesaid case crime number on furnishing a personal bond and two heavy 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 date 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 will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.
(V) The applicant shall remain present, in person, before the trial court on 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
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.
The bail application is allowed.
Order Date :- 2.1.2023
RPD
