Allahabad High Court
Dhiraj Sankhwar @ Sushil vs State Of U.P. on 21 November, 2024
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:182238
Court No. - 77
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23065 of 2024
Applicant :- Dhiraj Sankhwar @ Sushil
Opposite Party :- State of U.P.
Counsel for Applicant :- Ram Murti Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Ram Murti Yadav, learned counsel for the applicant and Ms. Ladly Pandey, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of applicant Dhiraj Sankhwar @ Sushil under Section 439 of the Code of Criminal Procedure, with a prayer to enlarge him on bail in Case Crime No.106 of 2023 for offence punishable under Sections 380, 457 of the Indian Penal Code, registered at Police Station-Rajpur, District- Kanpur Dehat during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, Kanpur Dehat vide order dated 29.02.2024.
Learned counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the present case due to ulterior motive. It is further submitted that first information report dated 01.12.2023 was lodged after about eight days of the incident against the unknown person. It is further submitted that the name of the applicant is surfaced on the confessional statement of co-accused (which is irrelevant without any recovery).
It is further submitted that no incriminating article has been recovered from from the possession of the applicant. Alleged recovery has been made without complying the mandatory provision of Section 100(4) of Cr.P.C. There is no independent/public witness of the recovery. Alleged recovery has not been made under Section 27 of the Indian Evidence Act. It is further submitted that co-accused Jitendra @ Ankit has been granted bail by this Court in Criminal Misc. Bail Application No. 12763 of 2024 vide order dated 25.04.2024.
He has next argued that applicant has criminal history of fourteen other case, which have been explained in para 4 of the supplementary affidavit in tabular form. It is further submitted that all the cases related to the years 2022 and 2023. The applicant is languishing in jail since 24.12.2023.
Learned counsel for the applicant has relied upon the judgments of Apex Court in Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu and another, (2012) 9 SCC 446 and Prabhakar Tiwari Vs. State of U.P. and another, (2020) 11 SCC 648 wherein the Apex Court has observed that pendency of other criminal cases against the accused may itself cannot be a basis for refusal of bail.
Per contra, learned A.G.A. has 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 again indulge in similar activities and will misuse the liberty of bail.
It is well settled position of law that bail is the rule and committal to jail is an exception and refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution [Vide State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308 Gudikanti Narasimhulu And Ors Vs. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429 and Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2021) 10 SCC 773.]
No material or circumstances has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witnesses in previous criminal history.
Keeping in mind, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.
Let applicant, Dhiraj Sankhwar @ Sushil be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) 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.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) 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 of Cr.P.C.
(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 the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law.
The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 21.11.2024
Akram
