Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14547 of 2021 Applicant :- Kuldeep Singh And Another Opposite Party :- State of U.P.
Counsel for Applicant :- Pradeep Chauhan,Om Prakash Katiyar,Pradeep Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Anand Mohan Pandey, along with Mr. Mahendra Tripathi, Advocate holding brief of Mr. Pradeep Chauhan, learned counsel for applicants and learned A.G.A. for State.
Perused the record.
This is the second bail application filed by applicants- Kuldeep Singh and Brahmjeet Singh seeking their enlargement on bail in Case Crime No.397 of 2019, under sections 302, 201, 120B I.P.C., Police Station- Majhola, District- Moradabad, during pendency of trial.
Record shows that in respect of an incident which is alleged to have occurred on 02.02.2019, a delayed F.I.R. dated 08.02.2019 was lodged by first informant- Ram Prakash Singh and was registered as Case Crime No.397 of 2019, under section 364 I.P.C., Police Station- Majhola, District- Moradabad. In the aforesaid F.I.R., four persons, namely, Brahmjeet, Mukesh, Kuldeep and Najim Khan have been nominated as named accused.
After lodging of aforesaid F.I.R., the dead body of deceased was recovered and sent for post-mortem. In the opinion of autopsy surgeon, cause of death of deceased was comma as a result of ante-mortem head injury. In the opinion of autopsy surgeon, following injuries were found on the body of deceased.
(1) A contusion 10cm x 5cm on the left parietal occipital area.
(2) An abrasion 5cm x 2cm on the right fore head.
(3) An abrasion 1cm x 1cm on the right knee joint.
Police upon completion of statutory investigation of aforementioned case crime number submitted charge-sheet dated 17.11.2019, whereby named accused have been charge- sheeted under sections 302, 201 and 120B I.P.C.
The first bail application of applicant registered as Criminal Misc. Bail Application No.40123 of 2020 (Kuldeep Singh and Another Vs. State of U.P.) came to be rejected by this Court vide order dated 07.12.2020. For ready reference, same is reproduced herein under:-
"Heard Sri Om Prakash Katiyar, learned counsel for the applicants, learned A.G.A. for the State and perused the record.
This bail application has been moved on behalf of applicants with prayer to enlarge them on bail in Case Crime No. 397 of 2019, under Section 302, 120-B, 201 I.P.C., Police Station-Majhola, District- Moradabad.
Learned counsel for the applicants submitted that applicants have been falsely implicated in this case. There is no eye witness of the incident. Occurrence is said to be of 02.02.2019 and F.I.R. has been lodged on 08.06.2019 after about four months of the occurrence. There is no motive behind the incident. Applicants are languishing in jail since 18.12.2019 in this case.
Learned A.G.A. has vehemently opposed the prayer for bail and submitted that earlier missing report was filed and after recovery of the body of the deceased F.I.R. has been lodged. He further submitted that eye witness Keshav has clearly stated in his statement recorded under Section 161 Cr.P.C. that deceased was thrown out from the roof by the applicants along with co-accused Mukesh, Brahmjeet and Nazim. He next submitted that bail application of the co-accused Nazim Khan has been rejected by the co-ordinate Bench of this Court vide order dated 06.01.2020 in Criminal Misc. Bail Application No. 55496 of 2019.
Considering the submission of learned counsel for the parties, facts of the case, nature of allegation, gravity of offence, without expressing any opinion on the merits of the case, the Court is of the view that there is no sufficient ground to enlarge the applicants on bail.
Hence, the prayer of bail for the applicants is hereby rejected.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and shall not be construed to have any reflection on the merits of the case.
The Trial Court is directed to make all possible efforts to decide the aforesaid case expeditiously, if there is no other legal impediment"
Subsequent to above, co-accused Mukesh was enlarged on bail vide order dated 07.10.2021 passed by this Court. For ready reference, same is reproduced herein under:-
"This is third bail application.
Heard learned counsel for the applicant and Sri Rajeshwar Singh, learned AGA for the State.
Learned counsel for the applicant submitted that this Court vide order dated 17.06.2020, rejected the first bail application No. 12187 of 2020 with observation that trial be concluded within one year from the date of production of certified copy of this order which he has served before the trial Court on 24.08.2020. It is next submitted that he has filed second application No. 40037 of 2020 prior to completion of one year, therefore, it has been dismissed as withdrawn by this Court vide order dated 28.10.2021. It is further submitted that trial has yet not been started which may be verified from the order sheet annexed alongwith present bail application, therefore, the applicant may be enlarged on bail. The applicant is in jail since 23.08.2019 and in case he is enlarged on bail, he will not misuse the liberty of bail.
Learned A.G.A. could not dispute the aforesaid facts.
Considering the material on record and the fact that trial has yet not started as well as in the light of dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22, larger mandate of Article 21 of the Constitution of India, without expressing any opinion on the merit of the case, let the applicant- Mukesh, involved in Case Crime No. 397 of 2019, under Sections- 302, 120-B, 201 I.P.C., Police Station- Majhola, District -Moradabad, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The concerned Court/Authority/Jail 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.
This bail order would be subject to the fulfillment of following conditions:-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. 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;
5. In case, the applicant misuses the liberty of bail 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.
6. 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
7. In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court his bail shall be effective after the period of short term bail comes to an end.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail."
Learned counsel for applicants contends that applicants are innocent. They have been falsely implicated in aforementioned case crime number. Applicants are in jail since 18.12.2019. As such, they have undergone two years of incarceration. Allegations made in F.I.R. are false and concocted. Present case is a case of circumstantial evidence. However, the test laid down for deciding a case based on circumstantial evidence in Sharad Birdhi Chand Sarda vs State Of Maharashtra reported in 1984 (4) SCC 611 is not satisfied in present case. In case, applicant are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
Learned counsel for applicants then contends that case of present applicants is similar and identical to co-accused Mukesh. There is no distinguishing feature on the basis of which case of present applicants can be said to be distinguished from co-accused Mukesh. As such, applicants are also liable to be enlarged on bail on the ground of parity.
Per contra, learned A.G.A. has opposed this bail application. However, he could not dispute the factual and legal submissions urged by learned counsel for applicants.
Having heard learned counsel for applicants, learned A.G.A. for State, upon perusal of record, complicity of accused-applicants and acquisitions made, this Court finds that applicants have made out a case for bail. Accordingly, bail application is allowed.
Let the applicants Kuldeep Singh and Brahmjeet Singh involved in Case Crime No.397 of 2019, under sections 302, 201, 120B I.P.C., Police Station- Majhola, District- Moradabad be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions,the prosecution shall be at liberty to move bail cancellation application before this Court.
The party shall file self-attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. 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 :- 17.12.2021 Saif