Yogendra Alias Yogi vs State Of U.P.
2023 Latest Caselaw 18451 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:146368
 
Reserved on 12.07.2023  
 
Delivered on  21.07.2023 
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27595 of 2022
 

 
Applicant :- Yogendra Alias Yogi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Kapil Tyagi
 
Counsel for Opposite Party :- G.A.,Ajeet Singh,Priyanka Singh
 

 
Hon'ble Siddharth,J.

Heard Sri Kapil Tyagi, learned counsel for the applicant; Sri Saurabh Sachan, learned counsel for informant as well as Sri Gyan Narayan Kanaujiya, learned AGA for State and perused the material placed on record.

There is allegation in the first information report that on 01.01.2022 in the hotel of the informant, brother of the informant, Kapil Rana, the informant and another person, Chef Parveen Kumar were involved in the cleaning of the hotel. At 3.30 a.m., a boy named, Aakash, along with his companion came on motorcycle and asked where is hotel owner. Aakash took out a pistol and fired on Kapil Rana. The second boy threw him ( who is the informant) on ground. When informant shouted, they pointed pistol and went away. His brother Kapil died in the hotel. It was further alleged that the co-accused, Aakash and another boy had came to the hotel at 1.00 a.m., and demanded food. Since hotel was closed they were refused food at that time. They had abused them and went away. They later returned and murdered the brother of the informant, Kapil Rana. The co-accused, Aakash, had come to the hotel many times earlier, therefore, he was recognized by the informant.

Learned counsel for the applicant submits that the applicant was not named in the first information report. He has been arrested with the co-accused, Aakash on the information given by the informer on 01.01.2022 and a pistol was recovered from co-accused. No fire arm or any incriminating material was recovered from the applicant. A video clip was recovered from the mobile phone of co-accused, Aakash, which was uploaded on his Instagram ID and one mobile phone was recovered from the applicant. During investigation on the basis of CCTV footage the name of one, Adesh Bhati came to the light. An application was moved by the informant for implication of Adesh Bhati in this case. From the statements of the witnesses recorded by the Investigating Officer, no role of the applicant making firing on the deceased has been found. The applicant has no criminal history and he is in jail since 01.01.2022.

Learned counsel for the informant has vehemently opposed the bail application. He has submitted that two cell phones were recovered from co-accused, Aakash and the applicant. Soon after the incident the co-accused, Aakash loaded a video on the Instagram wherein he claimed that he has caused the murder of the deceased and he requested for likes of his act online. He has submitted that a pen-drive containing the recorded video of co-accused has been placed before this court. He has submitted that although pen-drive is a secondary evidence in the form of electronic material / document but even in the absence of any certificate under Section 65B of Evidence Act, it can be seen by this court for the purpose of consideration of bail application. He has relied upon the judgement of the Apex Court in the case of Arjun Pandit Rao Khotkar Vs.Kailash Kushan Rao Gorantyal and others, 2020(7) Supreme Court Cases, 1. He has further submitted that the trial court can accept the certificate at later stage also.

Learned AGA has opposed the prayer for bail but could not dispute the above submissions.

After hearing rival contentions, this court finds that in this case main role has been assigned to co-accused, Aakash @ Akoo who is alleged to have fired and killed the brother of the informant on spot. The applicant was not named in the first information report. Subsequently 3rd accused has been introduced in this case namely, Adesh Bhaati. In the video found in the mobile phone and co-accused, Aakash, has been seen by the Investigating Officer and in the aforesaid video the applicant and named main accused, Aakash, both are seen. Co-accused, Aakash, has stated in the aforesaid video that whosoever loves him in the entire world should come and meet him in jail. He has committed open murder which he has loaded on his Instagram ID of Aakash Gujjar. The aforesaid video was down loaded in pen-drive by the Investigating Officer and it appears that another copy of the pen-drive has been filed before this court by the learned AGA along with compliance affidavit before the court at the time of hearing. This Court finds that the pen-drive placed before this court is still a secondary evidence and the Investigating officer has not bothered to bring on record any certificate of the expert proving that the contents of the pen-drive are genuine and drawn from the original source.

In case of Arjun Pandit Rao Khotkar (supra), the Apex Court has held that the requirement of production of certificate under Section 65-B(4) of the Evidence Act., in case of secondary electronic evidence can only be dispensed with where the party does everything in his power to get the requisite certificate or the authorised officer has wilfully refused to give the same. In such a circumstances compliance of mandatory provisions can be excused. During trial filing of such a certificate can be postponed to a later stage. In the present case the Investigating Officer could have got certificate from the expert regarding the video recovered. Even if the electronic evidence is accepted as genuine, fact remains that the disputed video has not been made by the applicant. Applicant has not uploaded such a video on his mobile phone. He is not seen in the video committing the alleged offence. At the most he is seen with the co-accused, Aakash, in the aforesaid video, hence applicant deserves to be enlarged on bail.

Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India 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 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, Yogendra Alias Yogi, involved in Case Crime No.1 of 2020, under Sections 302, 34 I.P.C, Police Station Beta-2, District- Gautam Budh Nagar 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.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.

(v) 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 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.

In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.

Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Dated: 21.07.2023

SS