Chandrapal Ahirwar @ Chandu vs State Of U.P.
2023 Latest Caselaw 19091 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:149613
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27814 of 2023
 

 
Applicant :- Chandrapal Ahirwar @ Chandu
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Om Prakash Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Om Prakash Yadav, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. Instant bail application has been filed by applicant-Chandrapal Ahirwar @ Chandu seeking his enlargement on bail in Case Crime No. 06 of 2023 under Sections 302, 201, 34 I.P.C. Police Station-Kotwali, District- Jhansi, during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 12.01.2023, a delayed F.I.R. dated 15.01.2022 was lodged by first informant Chotu and was registered as Case Crime No. 06 of 2023 under Sections 302, 201, 34 I.P.C. Police Station-Kotwali, District- Jhansi. In the aforesaid F.I.R. nine persons namely Nitin, Ankit, Nandram @ Ludi, Meena, Ritik, Vishal, Vikas Thakur (applicant herein) Rahul Bhagat and Chandu Ahirwar have been nominated as named accused.

5. The gravamen of the allegations made in the F.I.R is to the effect that Arun Parihar brother of the first informant aged about 21 years had left the house on 12.01.2023 at around 9AM. However he did not return even till the next date. Accordingly, a missing person report was lodged on 13.01.2023. Subsequently, an information was gathred that brother of first informant was died.

6. At the very outset, the learned counsel for the applicant contends that co-accused Rahul Bhagat Ahirwar @ Bhagat, has already been enlarged on bail by this Court on 11.7.2023 in Criminal Misc. Bail Application No.24885 of 2023. For ready reference the order dated 11.02.2023 is reproduced herein-under:

"1. Heard learned counsel for the applicant, learned A.G.A for the State, Sri Rakesh Kumar Shukla, learned counsel for the informant and perused the record.

2. Learned counsel for the applicant submits that neither any role has been assigned nor there is anything on record to demonstrate the complicity of the applicant in commission of alleged offence. He further submits that no recovery whatsoever has been made either from the possession or on the pointing of the applicant and that the applicant has merely been falsely implicated in the present case merely on the ground that he is friend of co-accused namely Ankit and Nitin, who have been assigned specific role in commission of alleged offence. Learned counsel next argued that the applicant has criminal history of two cases, which pertains petty offence. 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. He next submits that applicant is languishing in jail since 18.01.2023 having no criminal history.

3. Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail he will misuse the liberty of bail, however, could not dispute the submissions of learned counsel for the applicant with regard to parity.

4. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail. Hence the bail application is allowed.

5. Let applicant Rahul Bhagat Ahirwar alias Bhagat involved in Case Crime No. 06 of 2023 under Sections 302, 201, 34 I.P.C.,? Police Station Kotwali, District Jhansi, be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

I. 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.

II. 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.

III. In case, the applicant misuses the liberty of bail 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.

IV. 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.

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

Order Date :- 11.7.2023"

7. It is next contended that co-accused Ankit Batham has also been enlarged on bail by this Court vide order dated 11.07.2023 passed in Criminal Misc. Bail Application No. 24007 of 2023 (Ankit Batham Vs. State of U.P.). For ready reference, order dated 11.07.2023 is extracted herein under:-

" 1. None appeared on behalf of the informant. However, learned AGA for the State-respodent is present.

2. Sri Ashutosh Yadav, Advocate filed his power today in the Court on behalf of the applicant which is taken on record.

3. Heard Sri Ashutosh Yadav, learned counsel for the applicant and Sri Manoj Kumar, learned Brief Holder for the State-respondent.

4. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 6 of 2023, under Sections 302, 201, 34 IPC, Police Station Kotwali, District Jhansi, during pendency of the trial in the court below.

5. FIR of the present case was lodged against the applicant and eight others and according to the FIR, brother of the informant had gone from his home on 12.1.2023 but he did not return and thereafter on 14.1.2023 his dead body was found in District Datiya, M.P. and thereafter, FIR was lodged against the applicant and others on the basis of suspicion.

6. Learned counsel for the applicant submitted that it is a case of circumstantial evidence and except suspicion and confessional statement of the applicant and alleged recovery of adhar card, labour card, ATM card and PAN card of the deceased from the applicant, there is no other evidence on record.

7. He further submitted that on the basis of suspicion applicant was arrested and false recoveries have been planted against him. He next submitted that even, at this stage, on the basis of above noted recoveries, it cannot be said that applicant committed the murder of the deceased.

8. He next submitted that applicant was having previous criminal history of one case which has been explained in para-20 of the affidavit.

9. He next submitted that applicant is 100% disabled person and this fact is evident from the disability certificate of the applicant which has been annexed as annexure-9 to the affidavit. He further submitted that applicant is in jail in the present matter since 17.1.2023, therefore, he may be released on bail.

10. Per contra, learned AGA opposed the prayer for bail but could not dispute the arguments on fact advanced by learned counsel for the applicant.

11. I have heard learned counsel for the parties and perused the record of the case.

12. It is a case of circumstantial evidence but from perusal of the record, it reflects that except the confessional statement of applicant and the recoveries of adhar card, labour card, ATM card and PAN card of the deceased from the applicant, there is no other evidence against the applicant on record.

13. Therefore, considering the facts and circumstances of the case, discussed above, in my view, applicant is entitled to be released on bail.

14. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

15. Let the applicant-Ankit Batham, be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.

(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence.

(iii) The applicant shall not indulge in any criminal and anti-social activity.

16. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

17. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

Order Date :- 11.7.2023"

8. It is further contended that another co-accused Smt. Meena Vanshkar has also been enlarged on bail by this Court vide order dated 20.07.2023 passed in Criminal Misc. Bail Application No. 21869 of 2023 (Smt. Meena Vanshkar Vs. State of U.P.). For ready reference, the order dated 20.07.2023 is extracted herein under:-

" List revised. No one appears on behalf of the informant.

Counter affidavit filed by learned A.G.A. is taken on record.

Heard learned counsel for the applicant and learned A.G.A for the State.

The submission is that co-accuseds, Rahul Bhagat Ahirwar @ Bhagat and Ankit Batham, have already been enlarged on bail vide Criminal Misc. Bail Application Nos. 24885 and 24007 of 2023 on 11.7.2023 and the case of the applicant stands on identical footing, hence the applicant is also entitled for bail for the reasons given in bail application of co-accused on the ground of parity. The applicant is in jail since 17.1.2023.

On the other hand learned A.G.A has opposed the prayer for bail.

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 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, Smt. Meena Vanshkar, involved in Case Crime No. 06 of 2023, under Sections 302,201,34 IPC, Police Station- Kotwali District- Jhansi, be released on bail on her 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 :- 20.7.2023 "

9. On the above premise, the learned counsel for applicant submits that case of present applicant is similar and identical to that of abore mentioned bailed out co-accused. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforementioned bail out co-accused so as to deny him bail. He therefore submits that in view of above and for the facts and reasons recorded in the bail orders dated 11.07.2023 and 20.07.2023, applicant is also liable to be enlarged on bail on the ground of parity. Even otherwise applicant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. Applicant is in custody since 17.01.2023. As such, he has under-gone more than six months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore contends that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

10. Per contra, the learned A.G.A. has opposed the prayer for bail. He contends that since the applicant is a named as well as charge sheeted accused therefore he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. Moreover the learned A.G.A could not point out any such circumstance necessitating the custodial arrest of applicant during the course of trial.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that similarly situated co accused have already been enlarged on bail, the learned A.G.A. could not point out any such distinguishing feature as to distinguish the case of present applicant so as to deny bail of applicant, the charge sheet having been submitted therefore entire evidence sought to be relied upon by the prosecution stands crystalized, learned A.G.A. could not point out any such circumstance with reference to the record necessitating the custodial arrest of applicant during the course of trial, the judgement of the Supreme Court in Sumit Subhash Chandra Gangawal and another Vs. State113 of Maharashtra and another 2023 Live Law SC 373, clean antecedents of applicant, period of incarceration undergone but without expressing any opinion on the merits of the case, applicant has made out a case for bail on the ground of parity.

12. Accordingly the bail application is allowed.

13. Let the applicant-Chandrapal Ahirwar @ Chandu involved in aforesaid case crime number 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) Applicant will not tamper with prosecution evidence.

(ii) 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) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

14. 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 of applicant and send him to prison.

Order Date :- 26.7.2023

YK