Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17592 of 2021 Applicant :- Shravan Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Abhinav Gaur Counsel for Opposite Party :- G.A.,Mayank Yadav,Vivek Kumar Singh
Hon'ble Shekhar Kumar Yadav,J.
Link has been sent to learned counsel for the applicants as well as learned AGA. They have been heard through Video-link. Perused the record of the case.
Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Vibhu Rai, learned counsel for the applicant and Sri Vivek Kumar Singh, learned counsel for the informant and learned AGA for the State.
The applicant seeks bail in Case Crime No. 253 of 2020, under Sections 302, 147, 148, 149, 120-B IPC, P.S. Chhaprauli, District Bhagpat.
It is alleged that on 11.08.2020 at around 6.30 am, the father and brother of the first informant were going for a morning walk, the brother of the first informant namely Akshay was walking ahead of his father and when he heard a gunshot he allegedly turned around and saw Nitin Dhankad, Mayank Dollar, Vinit and Ankur Sharma and along with two to three unknown persons allegedly shot the father of the first informant. It is alleged that Akshay i.e. brother of first informant made hue and cry and ran into agricultural fields. It is further alleged that Dharmendra @ kala also witnessed the alleged incident.
It is contended by learned counsel for the applicant that the postmortem report discloses only two wounds on the body of the deceased one of which is the fire arm entry wound and second is exit wound. The firearm shot has been made from a very close range as there is presence of blackening on the wound.
It is further contended that the Investigating Officer has shown to have recovered a country made pistol from the possession of Mayank Dollar. It is further contended that the Investigating Officer has shown the Mayank Dollar to have made a confession that Vineet Dhankar and Nitin Dhankar shot Sanjeev Khokhar (deceased). It is further submitted that Investigating Officer has again shown Ankush to have made a confessional statement that they entered into a conspiracy to kill Sanjeev Khokhar and his son and has further revealed that Vineet Dhankar and Nitin Dhankar allegedly shot deceased i.e. Sanjeev Khokhar. It is further submitted that name of applicant has not been mentioned even once either by the Investigating Officer or by the accused persons in the instant case. It is further contended that the Investigating Officer has shown that Akshay i.e. son of deceased allegedly told him that Arun Kumar and Rajendra allegedly apprised him that his father was murdered by the applicant along with Sanjeev, Sagar Baliyan, Sagar Goswami and Sahil Salmani. It is further submitted that Dharmendra @ Kala has alleged in his statement that on 11.08.2020 at around 6.30 p.m. that he heard a gunshot and rushed to the place of incident where he allegedly saw the applicant along with Sanjeev, Sagar Goswami and Sagar Baliyan fleeing from the place of incident. It is further submitted that the Investigating Officer in a most malicious and mechanical manner exonerated the name of all the accused persons named in the FIR and submitted the charge sheet against the applicant and four other persons.
It is contended by learned counsel for the applicant that the applicants is innocent and has been falsely implicated in the present case. He is not named in the FIR. It is further submitted that after ten days of the incident, the Investigating Officer has been informed by some informer that deceased was shot dead by applicant along with other co-accused persons. It is further submitted that name of the applicant came in the extra judicial confession made before one Arun Kumar. It is further submitted that the Investigating Officer has also recorded the statement of the son of deceased, who allegedly told him that Arun Kumar apprised him that his father was murdered by the applicant along with other co accused persons. The applicant is in jail since 24.08.2020.
Per contra, learned AGA has vehemently opposed the prayer for grant of bail to the applicants but could not point out anything material to the contrary.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail. However, any observation made herein-above, will not affect the trial of the case.
Let the applicant -Shravan Kumar, involved in the above mentioned case 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 with the following conditions which are being imposed in the interest of justice:-
(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 THEIR 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.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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.
Order Date :- 21.5.2021 RavindraKSingh