Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14001 of 2019 Applicant :- Dwarika Nath Thakur @ Dwarika Sharma Opposite Party :- State Of U.P.
Counsel for Applicant :- Nitin Chandra Mishra Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Nitin Chandra Mishra, learned counsel for the applicant and Sri Om Prakash Mishra, learned A.G.A. for the State as well as perused the material on record.
The present bail application has been filed by the applicant- Dwarika Nath Thakur @ Dwarika Sharma with a prayer to enlarge him on bail in Case Crime No. 1026 of 2018, under Sections 365, 506, 323 I.P.C., Police Station-Cantt., District- Gorakhpur, during the pendency of the trial.
It has been argued by learned counsel for the applicant that a first information report has been lodged by Ajay Kumar Sharma on 2nd December, 2018 against Ajay Kumar Verma and Rajkumar Yadav alleging therein that earlier the first informant had taken a loan of Rs. 40,000/- from Ajay Kumar Verma but according to Ajay Kumar Verma he has taken Rs. 2 lacs and when the first informant denied to give Rs. 2 lacs in place of Rs. 40,000/- on 2nd December, 2018 at 05:00 when his son, namely, Sudhanshu Sharma went to the Railway Station, Gorakhpur for taking a bag of the first informant from them, he was kidnapped by the accused persons for which the present first information report has been lodged. It has further been argued by the learned counsel for the applicant that the applicant has not been named in the first information report. In the statements of the victim recorded under Sections 161 and 164 Cr.P.C., the name of the applicant has been surfaced, wherein it has been stated that when he went to railway station for taking a bag of his father from his friends, who were to come from Kolkata, Ajay Sharma came to him and said as to why he had come here and thereafter the applicant came and the applicant hit on his head by 5-6 slaps, due to which he felt dizziness and thereafter he kidnapped him by his motorcycle. It is argued that the entire story narrated in the first information report as well as in the statements of the victim appears to be highly improbable because it is impossible to believe that how can a person, who is 21 years young man, become dizzy only on hitting of five to six slaps on his head. The first information report has lodged only in order to exert pressure upon the accused persons not to give the money, which has been taken by him from Ajay Kumar Sharma, as is evident from the version of the first information report. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 7th February, 2019.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, learned A.G.A.could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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 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.
(Manju Rani Chauhan, J.) Order Date :- 30.4.2019 Sushil/-