Court No. - 74
Case :- CRIMINAL APPEAL No. - 1141 of 2021 Appellant :- Monu Respondent :- State Of U.P.And Another Counsel for Appellant :- Shashank Dwivedi Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant and learned AGA for the State and perused the record.
Learned A.G.A. has filed counter affidavit, which is taken on record.
Notice was sent to respondent no.2 and the Chief Judicial Magistrate, concerned has submitted that the notice has been personally served on respondent no.2.
None is present for the respondent no.2.
This appeal has been filed by appellant Monu against the impugned order dated 11.9.2020 passed by learned Special Judge, SC/ST Act, Kanpur Nagar passed in Bail Application No. 2434 of 2020(Monu Vs. State of U.P.) arising out of Case Crime No. 103 of 2020, under Section 302 I.P.C. and Section 3(2)V of SC/ST Act, P.S. Panki, District Kanpur Nagar, by which bail plea of appellant has been rejected. Aggrieved by the rejection order this appeal has been filed.
Submission of learned counsel for the appellant is that the FIR has been lodged by Vikrmaditya and the FIR itself shows that he is not an eye witness and he received information of the alleged incident by his brother-in-law Rajesh. It has been further submitted that the said Rajesh is also not an eye witness, therefore, submission of learned counsel for the appellant is that even though the applicant is named in the FIR but he has been named only on the basis of suspicion and there is no eye witness in this case. It has been also submitted that on the basis of FIR, the appellant was arrested and before the police he made a confessional statement and on his pointing one stick was recovered which is said to have been used for the commission of the offence. Further submission is that the confession before the police is not a legal evidence and recovery of the said stick is manipulated and in no way can be connected with this offence. It has been further submitted that the co-accused Sheelu has already been granted bail by this Court passed in Criminal Appeal No. 3326 of 2021 vide order dated 02.09.2021. Copy whereof has been produced before this Court, which is taken on record. It has also been submitted that the appellant is in jail from the last more than 15 months. It has been further submitted that the learned Special Judge without considering the material aspect of the case illegally rejected the bail application, which is not sustainable under law. Further submission is that appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned AGA has vehemently opposed the prayer and has submitted that the learned Special Judge has rightly rejected the bail application and appeal lacks merits.
In view of the above finding that the informant is not an eye witness and maarpeet has been committed not by using of any deadly weapon nor danda and the co-accused Sheelu has already been granted bail by this Court, therefore, I find that the learned Special Judge has committed error in rejecting the bail application and the impugned order is liable to be set aside.
In the result, appeal is allowed. Impugned order dated 11.9.2020 passed by learned Special Judge, SC/ST Act, Kanpur Nagar, is set aside.
Let appellant-applicant Monu be released on bail in Bail Application No. 2434 of 2020(Monu Vs. State of U.P.) arising out of Case Crime No. 103 of 2020, under Section 302 I.P.C. and Section 3(2)V of SC/ST Act, P.S. Panki, District Kanpur Nagar on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
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 appellant to prison.
Order Date :- 24.9.2021 Mini