Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20905 of 2021 Applicant :- Mahesh Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Subhash Chandra Yadav,Ajay Kumar Kashyap Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up through Video Conferencing.
Heard Sri Subhash Chandra Yadav, learned counsel for the applicant through Video Conferencing, Sri Virendra Kumar Maurya learned AGA for the State who has appeared through Video Conferencing.
Perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Mahesh Kumar, seeking enlargement on bail during trial in connection with Case Crime No.126 of 2020, under Section(s) 304, 427 I.P.C. registered at P.S. Diyoriyakalan, District Pilibhit.
Learned counsel for the applicant argued that prior to the present incident on 01.8.2020 one F.I.R. was got registered being Case Crime No. 125 of 2020 against Ram Singh the driver of Vehicle No. UP 26 T 6332, stating therein that on 1.8.2020 at about 7.00 P.M. his nephew Prashant and cousin brother namely Dipanshu met with an accident and in the said incident Prashant had lost his life and Dipanshu sustained grievous injuries and in retaliation, mob surrounded the vehicle in question and caught the driver of the vehicle and started beating him. Ram Singh the accused of the said case was the driver of the vehicle in question. The F.I.R. to the said incident was got registered by Chheda Lal as Case Crime No. 126 of 2020, under Sections 304, 427 I.P.C. against unknown persons. It is argued that after four days of lodging of the F.I.R. the statement of Chheda Lal was recorded under Section 161 Cr.P.C. on 5.8.2020 in which he discloses the names of four persons being Vikas, Mukaddam, Upendra and Mahesh, who were said to have assaulted his son Ram Singh, who was the driver of the said vehicle and due to the said assault, had lost his life. Mahesh Kumar named amongst the said persons is the present applicant. It is further argued that the co-accused Vikash has been granted bail by a co-ordinate Bench of this court vide order dated 02.2.2021 passed in Criminal Misc. Bail Application No.7342 of 2021, co-accused Shiv Kumar@Mukaddam has been granted bail by another co- ordinate Bench of this Court vide order dated 17.3.2021 passed in Criminal Misc. Bail Application No.11759 of 2021 and co- accused Upendra has also been granted bail by co-ordinate Bench of this Court vide order dated 22.3.2021 passed in Criminal Misc. Bail Application No. 13363 of 2021, copies of the said orders have been annexed as annexed as annexure no. 8 to the affidavit filed in support of bail application.
It is argued that the case of the applicant stands even on a better footing as that of the other co-accused who have been granted bail as there is no recovery of any incriminating article either from the possession or pointing out of the applicant. But from the pointing out of the other co-accused persons who have been granted bail, bricks were said to have been recovered which were said to be the article of assault. It is argued that the applicant has been falsely implicated in the present case. It is argued that the applicant has no other criminal antecedents as stated in para- 25 of the affidavit and is in jail since 7.4.2021.
Per contra, learned AGA opposed the prayer for bail and argued that the applicant has been named in the statement recorded under Section 161 Cr.P.C. of Chheda Lal the father of the deceased, who was the eye witness. It is prayed that the prayer for bail be rejected.
After having heard learned counsel for the parties and perusing the record, it is apparent that three co-accused persons have been granted bail by co-ordinate Benches of this Court. There is no recovery of any incriminating material either from the possession or pointing out of the applicant. The applicant is not named in the F.I.R., his name surfaces for the first time after four days of the incident in the statement recorded under Section 161 Cr.P.C. of Chheda Lal.
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- Mahesh Kumar, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties 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 :- 24.5.2021 Naresh Digitally signed by Justice Samit Gopal Date: 2021.05.24 17:05:07 IST Reason: Document Owner Location: High Court of Judicature at Allahabad