Court No. - 72
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23331 of 2021 Applicant :- Pramod Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Ajay Kumar Pathak Counsel for Opposite Party :- G.A.,Pankaj Sharma,Prashant Sharma
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned counsel for the informant and learned Additional Government Advocate representing the State and perused the record of the case.
The instant bail application has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 249 of 2020, under Sections 147, 323, 504, 506 and 302 IPC, police station Hathras Gate, district Hathras during the pendency of trial.
It is argued by the learned counsel for the applicant that informant Anil Kumar Sharma, who is father of the deceased-Saurabh Sharma, lodged the first information report on 24.7.2020 in respect of an incident, which took place on 23.7.2020, against three named accused persons, namely, Rahul Fauji, Gopal and Pramod Kumar-present applicant and three unknown persons alleging inter alia therein that on 23.7.2020 at about 9.00 p.m. the aforesaid accused persons came to his house and asked his son Saurabh Sharma to accompany them to take back his due amount of Rs. 2,00,000/- and believing them he accompanied them. On the same day at about 10.00 p.m. when informant's son Deepak Sharma and his brother Ashok Kumar were returning home from the market, they saw that near Sanjay Gandhi School, the accused persons named in the F.I.R. were assaulting the deceased by lathi, danda and iron rod. The F.I.R. further alleges that when both the witnesses tried to save him, accused also tried to assault them. The deceased, Saurabh Sharma was taken to hospital, where he succumbed to his injuries.
It is further argued by learned counsel for the applicant that the applicant has falsely been implicated in the case. In fact the occurrence has not taken place in the manner as alleged by the prosecution in the F.I.R. He has drawn the attention of the Court to the General Diary No. 71 dated 23.7.2020, in which ward-boy, Yogesh Kumar Mutaina, District Bagla Hospital, Hathras, has stated that the deceased, Saurabh Sharma was brought to the hospital by his cousin-Sonu Sharma and Deepak Sharma, who is real brother of Saurabh Sharma (deceased) in a dead condition, and it was disclosed by him that he had died due to accident by train. It is also pointed out that in the General Diary No. 70 dated 23.7.2020 at 23.40 O'clock also it is mentioned that the deceased died due to accident by train. It is next argued that later on in the F.I.R. a different story has been set up by the prosecution. So far as the recovery of iron rod from the possession of the applicant is concerned, it is submitted that the same has been planted in order to falsely implicate the applicant. The criminal history of the applicant has been explained in paragraph Nos. 26 to 28 of the bail application. It is also submitted that identically situated co-accused Rahul Fauji has already been enlarged on bail by the Co-ordinate Bench of this Court vide order dated 5.2.2021 passed in Criminal Misc. Bail Application No. 44218 of 2020. The applicant is languishing in jail since 30.7.2020 and in case he is enlarged on bail he will not misuse the liberty of bail.
Per contra learned A.G.A. and Mr. Prashant Sharma, learned counsel for the informant have opposed the bail prayer of the applicant, but do not dispute the aforesaid factual aspect of the matter, as argued on behalf of the applicant. It is submitted by learned counsel for the informant that since there is recovery of iron rod from the possession of the applicant, therefore, case of the present applicant is distinguishable from the case of co-accused, Rahul Fauji.
Considering the General Diary Nos. 70 and 71 as mentioned above, I find that at the initial stage, prosecution case was that the deceased died due to accident by train, but later on a new story has been developed in the first information report. In the first information report all the three accused persons are assigned similar role and co-accused, Rahul Fauji have already been enlarged on bail by the another Bench of this Court.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Without expressing any opinion on the merits of the case, let the applicant Pramod 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 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.
(v) The applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 28.7.2021 Sumaira Digitally signed by Justice Sanjay Kumar Singh Date: 2021.07.28 17:26:34 IST Reason: Document Owner Location: High Court of Judicature at Allahabad