Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16977 of 2021 Applicant :- Shiv Mohan Opposite Party :- State of U.P.
Counsel for Applicant :- Girish Singh Counsel for Opposite Party :- G.A.,Rama Pati Tripathi
Hon'ble Samit Gopal,J.
Heard Sri Girish Singh, learned counsel for the applicant, Sri Rama Pati Tripathi, learned counsel for the first informant and Sri Pankaj Mishra, learned brief-holder 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-Shiv Mohan seeking enlargement on bail during trial in connection with Case Crime No.233 of 2020, u/s 147, 323, 336, 307, 302 IPC, registered at Police Station Nawabganj, District Kanpur Nagar.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that there is a cross case from the side of the applicant. It is argued that five persons from the side of the applicant have received injuries whereas two persons from the side of the complainant have received injuries out of whom one person has died. The FIR has been registered against the applicant and five other co-accused persons. There is no specific allegation against the applicant. It is argued that the prosecution case is of a sudden fight and the case is of assault by bricks and stones. There was no use of any deadly weapon in the incident. It is argued that although two cases have been shown against the applicant as his criminal history but in Case Crime No.136 of 2017, final report has been submitted in his favour whereas the other case is a complaint case being numbered as complaint case no.8020 of 2011 in which applicant has been granted bail. It is further argued that co-accused Kalicharan, Neeraj and Jagmohan have been granted bail by coordinate Benches of this Court vide order dated 22.3.2021, 25.3.2021, 29.6.2021 passed in Criminal Misc. Bail Application Nos.42580 of 2020, 14279 of 2021 and 17185 of 2021 respectively, copy of the order granting bail to Co- accused Kalicharan is annexed as Annexure No.7 to the affidavit filed in support of bail application and copies of order granting bail to Neeraj and Jagmohan have been supplied by learned counsel for the applicant which are taken on record. The applicant is in jail since 29.7.2020.
Per contra learned counsel for the first informant and learned A.G.A. have vehemently opposed the prayer for bail. Learned counsel for the first informant has placed para no.22 of the counter affidavit and has argued that there is one other complaint case of the year 2020 in which the applicant is an accused which has not been disclosed in the affidavit. It is further argued that the applicant is named in the FIR and has joined hands with five other co-accused persons and has been instrumental in the assault but could not dispute the fact that three co-
accused persons namely Kalicharan, Neeraj and Jagmohan have been granted bail by coordinate Benches of this Court.
After hearing the counsel for the parties and perusing the record, it is apparent that common and general role has been assigned to six accused persons including the applicant. There is a cross version of the FIR and five persons from the side of the applicant have also received injuries and three co-accused persons have been granted bail by coordinate Benches 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-Shiv Mohan 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.
(Samit Gopal, J.) Order Date :- 27.7.2021 Gaurav