Court No. - 23
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8518 of 2018 Applicant :- Ishushamant @ Nitesh Opposite Party :- State Of U.P.
Counsel for Applicant :- Vijai Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Vivek Kumar Singh,J.
Heard Sri Vijai Kumar Tripathi,learned counsel for the applicant and Sri Abhinav Prasad, learned A.G.A. appearing for the State and perused the record.
Learned counsel for the applicant in support of his prayer for bail submits that the applicant is innocent and he has been falsely implicated in the present case due to ulterior motive. It is submitted that the first information report was lodged on 13.10.2016 against 12 named and 125 unnamed prisoners of Jail Prison Gorakhpur. The applicant is not named in the first information report. It is next contended that the prosecution is false and fabricated and implication of the applicant is based on only extra judicial confession. It is next contended that the criminal history of the applicant has been properly explained in paragraph-6 of the affidavit, filed in support of bail application.
It is contended by learned counsel for the applicant that similarly placed co-accused, namely,Shaktidhar Singh and Chandrika Sahani @ Chandu have already been granted bail by this Court vide order dated 17.4.2017 and 21.3.2017 passed in Criminal Misc. Bail Application No.13399 of 2017 and 7734 of 2017,copies whereof have been produced by the counsel for the applicant, which are taken on record, and since the case of the applicant stands on better footing to that of co-accused, hence the applicant is also entitled for bail on the ground of parity. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since 12.10.2009.
Learned A.G.A. opposed the prayer for bail.
Considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge,the applicant is entitled to be released on bail in this case.
Without expressing any opinion on the merits of the case, let the applicant Ishushamant @ Nitesh involved in Case Crime No. 619 of 2016, under sections 147, 148, 149, 323, 504, 506, 332, 353, 307, 342, 427, 436, 336, 325, I.P.C., 7 Criminal Law Amendment Act and 3 of Damage of Public Property Act, Police Station Shahpur, District Gorakhpur be released on bail on his furnishing a personal bond with two heavy sureties each in the like amount to the satisfaction of the court concerned with 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.
Order Date :- 23.3.2018 Su