Court No. - 59
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13628 of 2018 Applicant :- Harikesh Yadav Opposite Party :- State Of U.P.
Counsel for Applicant :- Ajay Yadav,Bijai Nath Yadav,Swati Agrawal Counsel for Opposite Party :- G.A.,Anish Kumar Singh
Hon'ble Suneet Kumar,J.
Heard learned counsel for the applicant, learned counsel for the informant, the learned A.G.A. and perused the record.
Learned counsel for the informant has declined to file counter affidavit and relied upon the statement of P.W.-2, which is taken on record.
This bail application has been filed on behalf of the applicant involved in Case Crime No. 252 of 2016 (S.T. No. 122 of 2016), under Sections 302, 307, 120B I.P.C. and Section 7 Criminal Law Amendment Act and Section 3/7/25 Arms Act, P.S. Saidpur, District Ghazipur.
As per prosecution case, informant along with his deceased cousin Nand Lal Yadav and deceased nephew Shakti Yadav were going on a motorcycle; cousin brothers Srikrishna Yadav and Praveen Yadav were following them on another motorcycle; four persons on two motorcycles including the applicant ambushed the informant and his brothers and started firing indiscriminately; first informant received injuries, however, his brother and nephew who were sitting with the informant on motorcycle succumbed to injuries; informant was examined as P.W.-1, who is the injured witness, has categorically stated his cousin Srikrishna Yadav and Praveen Yadav were not following them on the motorcycle, rather, after the incident informant (PW-1) informed them for the alleged incident on mobile phone; assailants were two in number and not four and had their faces masked.
It is urged that the fact witness does not support the prosecution version that four persons ambushed the deceased and the informant, neither his cousins were following them on another motorcycle. It is further submitted that a false case was instituted against the applicant for threatening and influencing the witnesses to delay the trial and to ensure that the applicant is kept in jail; the court discharged the applicant and others as the allegation of threatening the witnesses was found false as on the date of incident, applicant was in jail; effort is being made to keep the applicant in jail by not cooperating in trial; applicant is languishing in jail since 1.5.2016 having no criminal history and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Learned AGA and learned counsel appearing for the informant opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant-Harikesh Yadav be released on bail in the above case on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(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.
However, It is made clear that in case the applicant indulges in intimidating or threatening any witness, the State or Prosecutor would be at liberty to file an application for cancellation of bail.
Order Date :- 30.7.2018 Mukesh Kr.