Court No. - 89
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47048 of 2021 Applicant :- Santosh Yadav Opposite Party :- State of U.P.
Counsel for Applicant :- Kamlesh Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
Heard Sri Kamlesh Kumar Tiwari, learned counsel for the applicant, and Sri L. D. Rajbhar, learned AGA for the State.
This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of the applicant, namely, Santosh Yadav for seeking bail in Criminal Case No 44674 of 2021 (State Vs. Krishna Giri and others) arising out of Case Crime No. 101 of 2021, under Sections 307, 323, 324, 342, 343 I.P.C. registered at Police Station- Sahajanwa, District- Gorakhpur.
The bail application of the applicants has been rejected by the court below, on 16.09.2021.
Learned counsel for the applicant has argued that the FIR was lodged on 22.03.2021 by one Dayashankar Singh against five named accused persons including the applicant u/s 147, 148, 149, 307, 342, 323 IPC at Police Station- Sahajanwa, District- Gorakhpur being FIR No. 0101. The learned counsel for the applicant has further submitted that as per the FIR, only general role has been assigned to the applicant and no specific role has been attributed to him. The injury report shows that the injury no.1 is incised wound and caused by sharp-edge object and the injury nos. 2,3 and 5 are simple in nature and caused by hard and blunt object about the injury no. 6 there was only complain of pain all over the body but there was no visible injury. The CT scan of the injured, which was conducted subsequently was held to be normal. It is also submitted that from the allegation made in the FIR, it is not clear that who is the author of the injury caused to the injured. The statements of the alleged eye witnesses recorded by the police under Section 161 of Cr.P.C., namely Durv Chandra Yadav, and Mohan Yadav, were to the effect that the applicant was not involved in the assault although from the statements of other eye witnesses namely, Ram Narayan Goad and Rajpal specific role of assault has been assigned to the applicant and other co-accused persons. There are contradiction in the statements of eye witnesses as recorded under Section 161 of Cr.P.C. The learned counsel for the applicant has placed reliance upon paragraph no. 14 of the application so as to contend that in case crime no. 580 of 2018, u/s 147, 148, 149, 307, 323, 504, 506 IPC, P.S. Sahajanwa, District- Gorakhpur, the applicant has been enlarged on bail by virtue of Crl. Misc. Bail Application No. 49010 of 2018 (Santosh Yadav Vs. State of U.P.) so far as the second case being case crime no. 285 of 2019, u/s 147, 148, 149, 307, 323, 506 IPC, P.S. Sahajanwa, District- Gorakhpur, he has also been enlarged on bail in Crl. Misc. Bail Application No. 35379 of 2019 (Santosh Yadav Vs. State of U.P.) on 18.10.2019, thereafter, the applicant was implicated in three cases as (1) in case crime no. 302 of 2021, u/s 307 IPC, P.S. Gulariha, District Gorakhpur the applicant has been granted bail by the court of Sessions Judge, Gorakhpur vide order dated 20.07.2021 (2) in case crime no. 271 of 2021, u/s 395, 412 IPC, P.S. Gulariha, District Gorakhpur the applicant has also been granted bail by the court below vide order dated 19.08.2021 and (3) in case crime no. 304 of 2021, u/s 3/25 Arms Act, P.S. Gulariha, District Gorakhpur the bail application of the applicant was rejected by the court below vide order dated 16.09.2021. The learned counsel for the applicant has also relied upon the order dated 15.09.2021 passed in Crl. Misc. Bail Application No. 23633 of 2021 (Dileep Saini Vs. State of U.P.) and the order dated 22.09.2021 passed in Crl. Misc. Bail Application No. 27365 of 2021 (Vikash Saini Vs. State of U.P.) so as to contend that the co-accused Dileep Saini and Vikash Saini having similar role to that of applicant, have already been granted bail by this court, therefore, the applicant is also entitled to be released on bail on the ground of parity. It is next submitted that the applicant is languishing in jail since 06.08.2021 and in case, he is enlarged on bail, he will not tamper with the witness and will fully cooperate in the investigation.
Countering the said submission, learned AGA for the State has argued that the present case is not a fit case wherein the bail should be granted to the applicants but he could not dispute the factum of the pleadings so set forth by the applicant in paragraph no. 14 of the application with respect to the criminal history of the applicant and he could not dispute the fact of protection have already been granted to the similar co-accused which have been named in the aforesaid sections in the aforesaid case crime number.
Looking into the nature of the offence, there are no chances of accused fleeing from justice and period of detention in jail, without expressing any opinion on the merits, this case is found to be a fit case for bail.
Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant Santosh Yadav, involved in aforesaid crime be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i). The applicants shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
(ii). The applicants shall cooperate in the trial sincerely without seeking any adjournment.
(iii). The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.
(iv). The applicants 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 them from disclosing such facts to the Court to any police officer or tamper with the evidence.
(v). In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
(vi). Identity, status and residence proof of the applicants and sureties be verified by the court concerned before the bonds are accepted.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 20.12.2021 Nisha