Allahabad High Court
Manoj @ Kallu vs State Of U.P. Thru. Prin. Secy. Home Lko. on 1 August, 2024
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:52696
Court No. - 19
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11527 of 2022
Applicant :- Manoj @ Kallu
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Smriti,Vineet Kumar Mishra
Counsel for Opposite Party :- G.A.,Uttam Kumar Awasthi
Hon'ble Manish Kumar,J.
1. Heard learned counsel for the applicant and learned A.G.A for the State as well as perused the record.
2. The present bail application has been filed by the accused applicant Manoj @ Kallu seeking bail in Case Crime No. 159 of 2021, under Section 307 and 34 I.P.C, Police Station Majhila, District Hardoi.
3. Learned counsel for the applicant has submitted that as per the case in the First Information Report dated 05.05.2021 filed by the complainant Nitesh Kumar Agnihotri, lodged against the four accused persons including the applicant Manoj @ Kallu, stating therein that when the brother of the complainant Ritesh Agnihotri was coming back along with his animals, at that time, Raj Kumar Agnihotri, Purshottam Agnihotri, Shatrughan Agnihotri and the applicant had assaulted the brother of the complainant and the present applicant took out tamancha and fired at Ritesh Agnihotri due to which the fire arm injury was caused on the left shoulder. It is further submitted that the brother of the complainant expired after one year of the incident.
4. It is further submitted that the other two co-accused persons namely Purshottam Agnihotri and Shatrughan Agnihotri were not named in the chargesheet and their names were deleted which creates a doubt about the prosecution story as narrated in the First Information Report. The other co-accused person namely Raj Kumar Agnihotri has already been granted bail by this Court.
5. It is further submitted that the applicant is in jail since 08.05.2021. In the trial, the prosecution witness i.e. the complainant is not appearing for last more than 10 dates, though the applicant was always present on the date fixed. In support of his submission, learned counsel for applicant has drawn attention of this Court to the ordersheets filed along with the rejoinder affidavit.
It is further submitted that the applicant has criminal history, but in all the cases, the applicant has been enlarged on bail and in one case, he has been acquitted by the competent court of law.
6. It is further submitted that as per the law settled by the Hon'ble Supreme Court in the case of Javed Gulam Nabi Shaikh versus State of Maharashtra and another passed in Criminal Appeal No. 2787 of 2024 arising out of SLP (Crl) No. 3809 of 204 judgment dated 03.07.2024, the time period of trial is not certain howsoever serious a crime may be, an accused has a right of speedy trial as enshrined under the Constitution of India.
7. It has also been observed that the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment. The court concerned has to protect the fundamental right of an accused as enshrined under Article 21 of the Constitution of India, then the state or any other prosecuting agency should not oppose the plea of bail on the ground that the crime is serious.
8. On the other hand, learned A.G.A, on the basis of instructions dated 26.07.2024 received from the Sub-Inspector, Police Station Majhila, District Hardoi has submitted that there are 12 prosecution witnesses and till date neither the statement of any witness has been recorded. The summons have been issued and the next date fixed is 06.08.2024.
9. Shri Uttam Kumar Awasthi, learned counsel for complainant has submitted that the petitioner has a criminal history and he is the person who shot the brother of the complainant due to which he had expired hence he is not entitled for bail, but he failed to reply that from the last about 10 dates, what was the reason the complainant/the witnesses is not attending the court though the the order was passed for apparance of the witness for evidence on 31.07.2023.
10. It is further submitted by learned counsel for the complainant that an application was preferered under Section 216 Cr.P.C in which an order has been passed for further investigation and the report is still awaited. But that cannot be a ground for non-appearance.
11. From the above facts it is clear that the accused is participating in the proceedings but the complainant is evading the trial/proceedings by not appearing before the trial court despite several dates fixed for his evidence. There are 12 prosecution witnesses and till date, not even a single prosecution witness has been examined in the trial. In these circumstances, it is quiet uncertain as to when the trial is likely to conclude which is likely to take a long time. Thus the applicant is entitled for bail as per the law laid down by the Hon'ble Supreme Court in the case of Javed Gulam Nabi (supra)
12. Accordingly, the bail application is allowed.
13. Let the applicant Manoj @ Kallu be released on bail in aforesaid case crime number subject to his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) 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 or tamper with the evidence.
(iv) 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.
(v) 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.
(vi) 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.
Order Date :- 1.8.2024
DiVYa
