Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24583 of 2021 Applicant :- Shivam @ Bittu And Another Opposite Party :- State of U.P.
Counsel for Applicant :- Dharmendra Pratap Singh Counsel for Opposite Party :- G.A.,Alka Upadhyay,Manish Tiwari
Hon'ble Samit Gopal,J.
Heard Sri Dharmendra Pratap Singh, learned counsel for the applicants, Ms. Alka Upadhyay, learned counsel for the first informant and Sri Ankit Srivastava, 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 applicants-Shivam @ Bittu and Saurabh @ Chotu, seeking enlargement on bail during trial in connection with Case Crime No.197 of 2021, u/s 304 IPC, P.S. Nayi Mandi, District Muzaffarnagar.
Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is argued that although the applicants are named in the FIR but their implication in the present case is false and incorrect. The first informant is not an eye-witness of the incident. It is further argued that in the statement recorded under Section 161 Cr.P.C. of the first informant in the beginning he has not named the applicants but later on to a question put by the Investigating Officer, he stated that he was told by Abhishek that at the time of the incident, the applicants were also present. It is further argued that Abhishek was also interrogated by the police who has stated that in the marriage ceremony while dance was going on near the D.J., the deceased had a fight with co- accused Pardesi, after which co-accused Pardesi pushed Anuj who is the deceased who then got injured by the said push from a wall and fell down in a drain and then again to certain questions put by the Investigating Officer regarding who all were present at the place of occurrence, he stated that he does not remember, as such the prosecution case is of a fight between the co-accused Pardesi and the deceased Anuj. It is further argued that there is no recovery of any incriminating article either from the possession of the applicants or at their pointing out. The case of the applicants is distinguishable with that of co- accused Pardesi. Even otherwise the case is of a sudden quarrel in which there is a version that co-accused Pardesi and the deceased were under some intoxication and indulged in fight due to some dance in a marriage ceremony. It has also been pointed out that the applicants are not having any criminal history as stated in para 18 of the affidavit and are in jail since 19.5.2021.
Per contra learned counsel for the first informant and learned counsel for the State have vehemently opposed the prayer for bail and argued that in the FIR, there is a reference that Jyoti and Ram Saran are also eye-witnesses of the incident and they have stated that co-accused Pardesi indulged in fight with the deceased Anuj while dance was going on. It is argued that the applicants are named in the FIR and also in the statements of the first informant but could not dispute the fact that it is a specific case of the prosecution that there was a fight between the deceased and co-accused Pardesi.
After hearing the counsel for the parties and perusing the record, it is apparent that the first informant is not an eye-witness of the incident. The present case is a case of sudden quarrel and fight. The fight is said to have taken place between the co-accused Pardesi and the deceased Anuj.
The case of the applicants is distinguishable with that of co-accused Pardesi.
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 applicants may be enlarged on bail.
Let the applicants-Shivam @ Bittu and Saurabh @ Chotu, 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicants 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 applicants shall file an undertaking to the effect that they 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 applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse 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 applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.
(v) The applicants 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 applicants 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 them in accordance with law and the trial court may proceed against them 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 applicants.
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 applicants 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 :- 30.7.2021 Gaurav