Allahabad High Court
Ram Vichar Upadhayay vs State Of U.P. on 15 May, 2025
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:79909
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10957 of 2025
Applicant :- Ram Vichar Upadhayay
Opposite Party :- State of U.P.
Counsel for Applicant :- Kripa Kant Pandey,Udai Prakash Deo Pandey
Counsel for Opposite Party :- Amit Singh,G.A.,Sunil Kumar Singh
Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Kripa Kant Pandey, learned counsel for the applicant, Sri Sunil Kumar Singh, learned counsel for the first informant and Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on records.
3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Ram Vichar Upadhayay, seeking enlargement on bail during trial in connection with Case Crime No. 227 of 2019, under Sections 302, 307, 34, 116, 504, 506, 120-B, 201, 216 I.P.C. and 4/25 Arms Act, Police Station Chetganj, District Varanasi.
4. The facts of the case are that a First Information Report was lodged on 21.09.2019 at 13:35 hours by Sumit Upadhyay as Case Crime No. 0227 of 2019, under Sections 302, 307, 34, 504, 506 I.P.C., Police Station Chetganj, District Varanasi against Rajendra Upadhyay, Rajat Upadhyay, Pooja Mishra and Ram Vichar Upadhyay with the allegations that on 21.09.2019 at about 07:30 a.m. the accused Rajendra Upadhyay, Rajat Upadhyay and Pooja Mishra collectively armed with country-made pistol and chapar while hurling abuses shot his father Krishna Kumar Upadhyay and on shout by his mother on exhortation by Pooja Mishra, Rajendra Upadhyay and Ram Vichar Upadhyay shot his mother also and also fired upon him by a pistol but by chance he got saved. After firing upon his mother, Ram Vichar Upadhyay assaulted his mother with chapar and then all the accused persons ran away. He then took his father and mother to B.H.U. but on the way his mother has died. The accused persons were having enmity with them due to partition of house and a case is already pending regarding it between the family of the informant and the accused persons. There are many cases which are pending and there is an old enmity between them. His report be lodged and action be taken. In the present matter two persons namely Krishna Kumar Upadhyay and Smt. Mamta Upadhyay are alleged to have been shot who have died.
5. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. It is submitted that charge-sheet in the matter has been submitted against 12 persons in all including the applicant and three other accused named in the First Information Report. It is submitted that the prosecution version is not consistent in as much as initially the applicant was assigned the role of firing and also using chapar but later on he was stated to have used chapar in the present incident. It is submitted that co-accused Rajat Upadhyay has been granted bail by the Apex Court vide order dated 28.02.2025 passed in SLP (Criminal) Diary No. 41157 / 2024 (Rajat Upadhyay Vs. The State of U.P. & Anr.), the copy of the said order has been placed before the Court which is annexed as Annexure-S.A.-7 to the supplementary affidavit dated 09.03.2025. The said order reads as under:-
"1. Delay condoned.
2. The petitioner has approached this Court challenging the judgment dated 08.12.2022 passed by the Allahabad High Court whereby the order of the Additional District and Sessions Judge/Special Judge (POCSO Act) rejecting the petitioner's claim to be tried as a juvenile, has been upheld. The petitioner and his parents are accused in FIR No. 227/2019 registered on 21.09.2019 under Sections 302, 307, 504, 506 read with Section 34 of IPC at Chetganj Police Station.
3. The father of the petitioner (Rajendra Upadhyay) was granted bail pending trial and having been brought to the notice of this Court that his wife, namely, mother of the present petitioner (Pooja Upadhyay) was repeatedly filing one or the other petitions to derail the trial, certain directions were issued by this Court on 15.07.2024 in SLP (Criminal) No. 2264 of 2024, which was filed by the complainant (Sumit Upadhyay).
4. As a result thereto, the trial has commenced and some of the witnesses have already been examined.
5. Pending trial, the petitioner moved an application claiming himself to be juvenile. He relied upon some high school certificates, the affidavit of his mother and some other documents etc. to claim that he was born on 02.09.2002 and not on 02.09.2001. That claim has been turned down by the Juvenile Justice Board against which the appeal was dismissed by the Sessions Court and those orders have been upheld by the High Court. The petitioner was arrested on 04.10.2019 and is in custody since then.
6. The question as to whether the petitioner was a juvenile or not is a question of fact which has been determined by the courts below. Assuming some other material comes on record to substantiate such claim, the law permits the petitioner to raise such a plea at any stage of the proceedings. We, therefore, dispose of the Special Leave Petition(s) with liberty to the petitioner that he may raise such a claim at a subsequent stage based upon some new material on record and the same shall be determined by the trial court in accordance with law.
7. However, we find justification in the petitioner's prayer to release him on bail. He is in custody for more than 5 years. The trial is still pending and it will take reasonable time. Therefore, without expressing any opinion on merits, the petitioner is directed to be released on bail subject to his furnishing bail bonds to the satisfaction of trial court and further subject to the condition that he shall fully cooperate with the ongoing trial and shall remain present in Court as and when the matter is listed.
8. Pending application(s), if any, shall stand disposed of."
6. It is further submitted that co-accused Madan Lal, Krishna Mohan Mishra @ Bhullan, Mahendra Pratap Rai, Kumari Vatsala Upadhyay, Achche Hasan @ Najmul Hasan, Kushmeshwar Mishra, Pooja Mishra @ Pooja Upadhyay, Ramesh Chandra Upadhyay and Rajendra Upadhyay have been granted bail by a co-ordinate Bench of this Court vide orders dated 09.12.2019, 10.01.2020, 17.01.2020, 03.02.2020, 24.02.2020, 25.02.2020, 29.09.2020, 18.12.2020 and 07.11.2023 passed in Criminal Misc. Bail Application Nos. 54578 of 2019, 56540 of 2019, 1434 of 2020, 2232 of 2020, 6065 of 2020, 6161 of 2020, 14015 of 2020, 8380 of 2020 and 49736 of 2021, the copies of the said orders are annexed as Annexure-21 to the affidavit. It is next submitted that co-accused Manchanda @ Chandan has been granted bail by another Bench of this Court vide order dated 01.09.2020 passed in Criminal Misc. Bail Application No. 20465 of 2020 (Manchanda @ Chandan Vs. State of U.P.), the copy of the said order has been produced before the Court which is taken on record. Learned counsel further submitted that the applicant is reported to be involved in 05 other criminal cases, the disclosure & explanation of which is in paragraph 52 of the affidavit. The applicant is in jail since 25.09.2019.
7. Per contra, learned counsel for the first informant and learned counsel for the State vehemently opposed the prayer for bail and submitted that the applicant is named in the first information report and role has been assigned to him. It is submitted that the applicant has been assigned the role of assault upon the both the deceased with a chapar and there are injuries as per the postmortem examination report. It is submitted that even the site plan of the place of occurrence goes to show the place where the applicant had indulged in the present incident and used the chapar. It is submitted that trial in the present matter is at the fag end and even the same has been expedited by the Apex Court which has been referred to by this Court in an order dated 06.05.2025 passed in Application U/S 482 No. 7764 of 2023 (Pooja Upadhyay Vs. State of U.P. and Another), the copy of the said order has also been produced before the Court which is taken on record.
8. After having heard learned counsel for the parties and perusing the record, it is evident that applicant is in jail since 25.09.2019. The trial in the present matter has been expedited by the Apex Court and is at an advanced stage. Co-accused Rajat Upadhyay has been granted bail by the Apex Court and co-accused Madan Lal, Krishna Mohan Mishra @ Bhullan, Mahendra Pratap Rai, Kumari Vatsala Upadhyay, Achche Hasan @ Najmul Hasan, Kushmeshwar Mishra, Pooja Mishra @ Pooja Upadhyay, Ramesh Chandra Upadhyay, Rajendra Upadhyay and Manchanda @ Chandan have been granted bail by co-ordinate Benches of this Court.
9. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
10. Let the applicant- Ram Vichar Upadhayay, be released on bail in the aforesaid case crime number on 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 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., 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, in accordance with law, under section 174-A I.P.C.
(v) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
11. 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.
12. The bail application is allowed.
13. Pending application (s), if any, shall stand disposed of.
Order Date :- 15.5.2025
AS Rathore
(Samit Gopal,J.)
