Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20062 of 2021 Applicant :- Basukinath Tiwari @ Basu Opposite Party :- State of U.P.
Counsel for Applicant :- Ashok Kumar Tripathi,Madan Mohan Yaduvanshi,Nisha Dixit,Sachin Kanaujiya Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Sachin Kanaujiya, learned counsel for the applicant, Sri Ankit Srivastava, learned AGA for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Basukinath Tiwari @ Basu, seeking enlargement on bail during trial in connection with Case Crime No. 0452 of 2020, under Sections 396, 412, 120B I.P.C. registered at P.S. Noida Sector-58, District Gautam Buddh Nagar.
Learned counsel for the applicant argued that the F.I.R. has been registered against unknown persons stating therein that the son of the first informant went from the house at about 10.30 P.M. on 2.9.2020 after which he got an information at about 12.45 A.M. on 3.9.2020 that he has been admitted in the Fortis Hospital after some unknown persons have assaulted him and his car has been looted. It is argued that the applicant has been falsely implicated in the present case. It is argued that subsequently the police informer informed the police on 27.10.2020 that he has come to know that Kuldeep Chauhan@Happy@Krishna, Vikas@Vikky, Sonu Singh, Shamim Shekh and Ajay Kumar Rathore were involved in the present case, after which the said persons were apprehended and then Ajay Kumar Rathore gave his confessional statement to the police and stated that one Mohd. Naseem Shekh and the applicant had asked them to sell a Creta Car, after which the looted Creta Car was recovered at their pointing out. Subsequently on 27.10.2021 itself the co-accused Mohd. Naseem Shekh and the applicant were arrested and an Accent Car was recovered which is said to have been used in the said incident and from the dashboard of the said car an Aadhar Card of Gulshan Kalra the father of the deceased along with a stick, is said to have been recovered which was also of the deceased. It is argued that the same is a planted recovery and there is no independent witness to the same.
It is further argued that the implication of the applicant is on the basis of confessional statement of co-accused and then the confession of the applicant to the police which is an inadmissible evidence. It is argued that in so far as the looted vehicle is concerned, the same has been recovered on the pointing out of the said five co-accused persons who were arrested earlier. It is argued that there is no credible evidence to connect the applicant in the present case. The applicant has been falsely implicated by the police just in order to show good work. It is argued that the applicant is a B. Tech student and is also working in IENERGIZER IT Service Pvt. Ltd. It is argued that the applicant has no other criminal antecedents as stated in para- 36 of the affidavit and is in jail since 27.10.2020.
Per contra, learned State counsel opposed the prayer for bail but could not dispute the arguments as raised.
After having heard learned counsels for the parties and perusing the record, it is evident that the applicant is not named in the F.I.R. The implication of the applicant is initially on the basis of the statement of co-accused, then the applicant is said to have given his confessional statement to the police. The recovery of an Aadhar Card of the father of the deceased is from the dashboard of the vehicle which is alleged to have been used in the said incident. The said vehicle does not belong to the applicant.
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.
Let the applicant- Basukinath Tiwari @ Basu, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (out of which one surety should be the family member of the applicant) 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.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
(Samit Gopal,J.) Order Date :- 27.9.2021/Naresh