Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32826 of 2021 Applicant :- Jokhu Opposite Party :- State of U.P.
Counsel for Applicant :- Sanjay Shukla Counsel for Opposite Party :- G.A.,Rajesh Tripathi
Hon'ble Samit Gopal,J.
Heard Sri Sanjay Shukla, learned counsel for the applicant, Sri Rajesh Tripathi, learned counsel for the first informant and Sri B.B. Upadhyay, learned A.G.A. 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- Jokhu, seeking enlargement on bail during trial in connection with Case Crime No. 97 of 2021, under Sections 147, 148, 149, 120- B, 307, 302 I.P.C. and Section 7 Criminal Law Amendment Act, registered at Police Station Khajni, District Gorakhpur.
Learned counsel for the applicant argued that the applicant is not named in the First Information Report. The First Information Report has been registered against Shambhu Yadav and one unknown person by Dharmendra Narayan Dubey stating therein that on 14.04.2021 at about 10:30 PM due to some rivalry between the parties with regards to election of village Pradhan Raghvendra Narayan Dubey the chacha of the first informant was shot by Shambhu Yadav the other contesting candidate. He was taken to Sadar Hospital from where he was referred to the Medical College, Gorakhpur from where the doctors referred to Medical College, Lucknow where he was being treated. It is argued that the First Information Report was registered under Section 307 IPC subsequently Raghvendra Narayan Dubey died on 19.04.2021 at 05:02 PM and then the case was converted into under Section 302 IPC.
It is further argued that the first informant in his statement recorded under Section 161 Cr.P.C. has not named the applicant but has stated that later on he has come to know that six other persons including the applicant and some other persons are also involved in the present case but even therein he has assigned the role of shooting upon the deceased by co-accused Shambhu Yadav. It is argued that subsequently Neeraj Mishra, Vineet Dubey, Moti Paswan and Sanjay Dubey have been interrogated as the alleged eye witnesses who have also although named the applicant as one of the accused persons but even therein the role of firing upon the deceased has been assigned to co-accused Shambhu Yadav only. It is argued that as such the case of the applicant is distinguishable with that of co-accused Shambhu Yadav who has been assigned the specific role of firing upon the deceased. It is argued that co-accused Abhishek @ Tisu; Rinku Yadav and Pintu Yadav, have been granted bail by this Court including a co-ordinate Bench of this Court vide orders dated 06.09.2021 and 14.09.2021 passed in Criminal Misc. Bail Application Nos. 29519 of 2021 and 33233 of 2021, the copy of the said orders have been produced before the Court which are taken on record. Learned counsel has argued that after the applicant was arrested in the present matter, on case under the Scheduled Castes and Scheduled Tribes Act and one case under the Gangsters Act has been registered against him but the said cases are after the present case, after the arrest of the applicant. It is argued that the applicant is aged about 70 years and is in jail since 23.06.2021.
Per contra, learned counsel for the first informant opposed the prayer for bail vehemently. It is argued that the applicant is one of the important persons who was active when the present incident took place. Although the factum that co- accused Shambhu Yadav has fired upon the deceased has not been disputed by the learned counsel appearing for the first informant but it is argued that the applicant had initially indulged in some hot talks with the rival group after which co-accused Shambhu Yadav fired upon the deceased. It is further argued that there has been a threatening from the side of the accused persons to the first informant regarding which he has moved an application before the S.S.P. Gorakhpur also and as such the same clearly demonstrates that the accused persons are threatening the witnesses of the present case. Learned counsel for the State also opposed the prayer for bail and has adopted the arguments of learned counsel for the first informant and has further supplemented that the postmortem report shows the injuries which do not corroborate with the prosecution version which would go to show that there had been assault by some more persons.
After having heard learned counsels for the parties and perusing the records, it is apparent that the applicant is not named in the First Information Report and subsequently has been named in the statement of the first informant and the four other eye witnesses but the role of firing has been assigned to Shambhu Yadav.
The case of the applicant is distinguishable with that of co-accused Shambhu Yadav.
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- Jokhu, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties will be of family members) 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.
Order Date :- 24.9.2021 AS Rathore (Samit Gopal,J.)