Sujit Kumar Prajapati vs State Of U.P.
2023 Latest Caselaw 6760 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10255 of 2023
 

 
Applicant :- Sujit Kumar Prajapati
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ram Kesh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Ramkesh Yadav, the learned counsel for applicant and the learned A.G.A. for State.

This is a repeat application for bail filed by applicant-Sujit Kumar Prajapati seeking his enlargement on bail in Case Crime No. 63 of 2020 under Sections 302/34 IPC, Police Station-Jalalpur, District-Jaunpur during the pendency of trial.

The first bail application of applicant being Criminal Misc. Bail Application No. 53869 of 2022 (Sujit Kumar Prajapati Vs. State of U.P.) was rejected by this Court vide order dated 9.12.2022. For ready reference, same is reproduced hereinunder:-

"On the matter being taken up, Mr. Ijaz Ahmad, Advocate, holding brief of Mr. Ram Kesh, learned counsel for applicant submits that present application be dismissed as not pressed as there are certain inherent mistakes, which cannot be cured by filing supplementary affidavit.

Learned A.G.A. does not oppose the prayer made by learned counsel for applicant.

Accordingly, present application is dismissed as not pressed with liberty to file fresh.

Certified copy of impugned order and impugned F.I.R. may be returned to learned counsel for applicants after obtaining photo copy of same to be kept on record.

Order Date :- 9.12.2022 "

Record shows that in respect of an incident which is alleged to have occurred on 18.02.2022, a delayed FIR dated 19.02.2022 was lodged by first informant which was registered as Case Crime No. 0063 of 2022, under Section 302/34 IPC, Police Station-Jalalpur, District-Jaunpur. In the afoersaid FIR, 2 persons namely Jitendra Kumar Gautam and Sujit Kumar Prajapati i.e. applicant herein have been nominated as named accused.

The gravamen of the allegations made in the FIR is that named accused with a common intention caused the murder of Girija Shankar Singh.

Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused, however, applicant is innocent and has been falsely implicated in aforementioned case crime number. Present case is a case of circumstantial evidence and therefore the complicity, if any, of applicant in the crime in question has to be judged in the light of parameters laid down by Apex Court in Paragraph 152 of the judgment in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622.

However, in the present case up to this stage, the parameters laid down by Apex Court in aforesaid judgment are not satisfied against applicant According to the learned counsel for applicant, co-accused-Jitendra Kumar Gautam has already been enlarged on bail by this Court vide order dated 18.05.2022 passed in Criminal Misc. Bail Application No. 14200 of 2022 (Jitendra Kumar Gautam @ Jeetu Vs. State of U.P.). For ready reference, the same is extracted hereinunder:-

"Heard learned counsel for the applicant, learned AGA for the State and perused the record.

The present bail application has been filed by the applicant seeking enlargement on bail in Case Crime No. 63 of 2022, under Sections 302/34 I.P.C., Police Station Jalalpur, District Jaunpur.

As per the prosecution version, the informant along with his brother had gone to attend a marriage ceremony and while returning, on Lehengpur road, the accused along with co-accused with a deliberate intent, inflicted multiple injuries by brick on the deceased as a result of which he died. Statement under section 161 Cr.P.C. of the informant has been recorded in which the version is somewhat different in as much as it is alleged that the bike of the deceased touched the two persons who as a result of road rage, inflicted the injuries.

Learned counsel for the applicant states that the applicant-accused is a resident of different village and was not known to the informant and in the statement under section 161 Cr.P.C., the informant states that the name of the accused-applicant was informed by a passerby. The identity of the passerby is not disclosed and it is difficult to conceive as to how the applicant could ascertain the identity of the applicant at about 11-12 in the night when nobody was there around. It is stated that in the month of February, the visibility must have been low and it is quite probable that the deceased met with an accident and the applicant has been falsely implicated only because there was some dispute of landed property between the applicant and the in laws of the deceased. It is also urged that the FIR version is not consistent with the version of statement under section 161 Cr.P.C. and the version of the informant appears improbable so far as establishment of applicant's identity is coconcerned. Submission is that the applicant has no prior criminal history and is in jail since 19.02.2022 and the trial is not likely to conclude shortly and that the applicant undertakes that he will not misuse the liberty of bail and will cooperate in the conduct of trial.

Learned AGA opposed the bail application.

Having considered the respective submissions advanced; perused the materials placed on record and considering the fact that the applicant has no criminal history and no incriminating material is shown to have surfaced against him during the course of investigation nor any motive is substantiated, the applicant is entitled to be released on bail, at this stage. Above observations made in the bail order shall, however, not be construed as expression of opinion, on the merits, at the stage of trial.

Let the applicant Jitendra Kumar Gautam @ Jeetu involved in aforesaid case crime 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) 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 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.

(iv) 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.

(v) 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. 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.

(vi) The applicant shall remain present, in person, before the trial court on the 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.

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.

Accordingly, the present bail application is allowed.

Order Date :- 18.5.2022"

On the above premise, it is urged that case of present applicant is similar and identical to that of co-accused, Jitendra Kumar Gautam @ Jeetu, who has already been enlarged on bail. There is no such distinguishing feature on the basis of which the case of present applicant can be distinguished from aforementioned co-accused who has been enlarged on bail so as to deny his bail. It is thus urged that for the facts and reasons recorded in the bail order of co-accused, Jitendra Kumar Gautam @ Jeetu applicant is also liable to be enlarged on bail of the ground of parity.

Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal proceedings to his credit except present one. Applicant is in jail since 23.02.2022. As such, he has undergone more than 1 year of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.

Per contra, the learned A.G.A. has opposed the present application for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant at this stage.

Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, acquisitions made and complicity of applicant coupled with the fact that co-accused, Sujit Kumar Prajapati has already been enlarged on bail, there being no distinguishing feature to distinguish the case of present applicant with that of co-accused who has been enlarged on bail but without making any comment on the merits of the case, the applicant is liable to be enlarged on bail.

Accordingly, the bail application is allowed.

Let the applicant-Sujit Kumar Prajapati, be released on bail in the aforesaid case crime number 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) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

10. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 2.3.2023

Vinay