Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15815 of 2021 Applicant :- Sani @ Sunil Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Ajendra Kumar,Sanjay Vikram Singh Counsel for Opposite Party :- G.A.,Sheetala Prasad Pandey
Hon'ble Samit Gopal,J.
Heard Sri Ajendra Kumar, learned counsel for the applicant, Sri Sanjay Vikram Singh and Sri Digambar Dwivedi holding brief of Sri Sheetala Prasad Pandey, learned counsel for the first informant and Sri S.B. Maurya, 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-Sani @ Sunil Kumar, seeking enlargement on bail during trial in connection with Case Crime No.385 of 2017, under Sections 302, 120-B IPC, registered at Police Station Sikandrarao, District Hathras.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. The applicant is not named in the First Information Report. The First Information Report has been registered against six other named accused persons but the police after investigation has exonerated two accused persons and has submitted charge sheet only against four other accused persons. It is argued that the occurrence in the present case is alleged to have taken place on 28.06.2017 and after the same lodging of the First Information Report, in the first statement of the first informant, the applicant is not named. It is stated that subsequently on 31.08.2017, the second statement of the first informant was recorded in which she has although named the applicant and four others being Yatendra Singh Thakur, Gandharv, Bhanu and Yogesh but exonerated all the accused named in the FIR. The naming of the applicant is only on the basis of suspicion. It is further submitted that later on the name of the applicant has surfaced after 1 year & 7 months from the date of the incident in the statement of Ajab Singh and Shashi Kant Upadhyay. It is argued that there is no recovery of any incriminating material either from the possession or pointing out of the applicant. It is further argued that co-accused Yatendra Singh Thakur and Yogesh have been granted bail by a co-ordinate Bench of this Court as well as this Bench vide orders dated 02.07.2021, 22.7.2021 passed in Crl. Misc. Bail Application Nos. 4591 of 2021 (Yatendra Singh Thakur Vs. State of U.P.) and 15313 of 2021 (Yogesh Vs. State of U.P.), copy of the said orders have been produced before the Court which are taken on record. It is further argued that even in the statement recorded after 1 year & 7 months, the evidence coming against the applicant after naming him is of last seen only as such the case of the applicant stands at a better footing than that of co-accused who has been granted bail. It is further argued that the applicant has criminal history of one case which has been disclosed in para no.13 of the affidavit. The applicant is in jail since 17.01.2021.
Per contra, learned counsel for the first informant as well as learned AGA vehemently opposed the prayer for bail but could not dispute the fact that the applicant is not named in the First Information Report and his name has surfaced in the second statement of the first informant on the basis of suspicion only and further that co-accused Yatendra Singh Thakur and Yogesh have been granted bail by a co-ordinate Bench of this Court as well as by this Court. It is further argued that there is a criminal history of one more case under Section 420, 467, 468, 471 IPC which has not been disclosed by the applicant. Learned counsel for the first informant very spontaneously argued that the applicant had been threatening the first informant during the period of his abscondance. The first informant of the said case as disclosed in para 13 and the first informant of the present case is the same person and as such it is evident that the applicant is having habit of repeating the offences, hence the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that the applicant is not named in the First Information Report. His implication in the present case has surfaced for the first time after about more than 1 year & 7 months in the second statement of the first informant and co-accused Yatendra Singh Thakur has been granted bail by a co-ordinate Bench of this Court.
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-Sani @ Sunil Kumar, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one should be of his family member) 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.
(Samit Gopal, J.) Order Date :- 28.7.2021 Gaurav