Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52886 of 2021 Applicant :- Shiv @ Shiva @ Bholu Opposite Party :- State of U.P.
Counsel for Applicant :- Kamlesh Kumar Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
Supplementary affidavit has been filed today, is taken on record.
Heard learned counsel for the applicant, learned AGA for the State and perused the material available on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail in Case Crime No.204 of 2021, under Section 2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 at Police Station Sadar Bazar, District Agra.
I have perused the prosecution story as set up in the impugned first information report and also the bail rejection order.
It is contended by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The applicant is neither a member of any gang nor he has any concern with the gang leader or any gang members. It is further contended that only one case has been shown against the accused-applicant in the gang chart, in which the applicant is on bail. Copy of gang- chart and bail order have been annexed as Annexure Nos.2 and 3 respectively to the bail application. The applicant is having criminal history of one case in which he is on bail. Similarly placed co-accused Bhanu Pratap Mudgal @ B.P., Mukesh and Amit have already been granted bail by this Court vide orders dated 08.12.2021 and 15.09.2021 passed in Criminal Misc. Bail Application Nos.42925 and 34126 of 2021, copy of bail orders have been placed on record. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the applicant have also been touched upon at length. The applicant is in jail since 30.03.2021.
On the other hand, learned A.G.A. opposes the application for bail.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial 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 @ Shiva @ Bholu, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) 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.
(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 IPC.
(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., 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 IPC.
(iv) 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.
(v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
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 :- 24.12.2021/Ajeet