Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33052 of 2021 Applicant :- Devki Opposite Party :- State of U.P.
Counsel for Applicant :- Ashish Kumar Singh Counsel for Opposite Party :- G.A.,Vijay Bahadur Shivhare
Hon'ble Samit Gopal,J.
Heard Sri Ashok Kumar Yadav, holding brief of Sri Ashish Kumar Singh, learned counsel for the applicant, Sri Vijay Bahadur Shivhare, learned counsel for the first informant and Sri Raj Kumar Gupta, learned counsel 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-Devki, seeking enlargement on bail during trial in connection with Case Crime No.115 of 2021, under Sections 304, 109 I.P.C., registered at Police Station Sumerpur, District Hamirpur.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the role assigned to the applicant is of exhortation only. As per the prosecution case itself, co-accused Dinesh is alleged to have assaulted Sarvesh who is the deceased with stone on his head due to which he received injuries and subsequently he died. It is further argued that the case of the applicant is distinguishable to that of co-accused Dinesh who has been assigned the main role of assault on the deceased. It is argued that the applicant is a lady and is entitled to get benefit of Section 437 Cr.P.C. It has also been pointed out that the applicant is not having any criminal history as stated in para 23 of the affidavit. The applicant is in jail since 01.06.2021.
Per contra learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant had abetted the said incident and it was only after she exhorted the co-accused Dinesh he assaulted the deceased, as such the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that the applicant is a lady. The main role of assault upon the deceased is to co- accused Dinesh. The applicant has been assigned the role of only exhortation.
The case of the applicant is distinguishable with co-accused Dinesh.
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-Devki, 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.
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/Gaurav