Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26033 of 2018 Applicant :- Subham Mishra Opposite Party :- State Of U.P.
Counsel for Applicant :- Bipin Kumar Tripathi Counsel for Opposite Party :- G.A.,Mohd. Shoeb Khan
Hon'ble Aniruddha Singh,J.
Counter affidavit and affidavit of compliance filed today by learned A.G.A. are taken on record.
Heard Sri Bipin Kumar Tripathi, learned counsel for the applicant, Sri Mohd. Shoeb Khan, learned counsel for the complainant and Sri D.N. Tiwari, learned A.G.A. for the State and perused the record.
According to the prosecution case, on 24.5.2018 a bag containing a U.S.A. Carbine (9 m.m.) and two magazine from the roof of house of Shesh Nath Jaiswal and search was made by the police to said place and Shesh Nath Jaiswal informed that he had no knowledge about the said recovery and stated that enmity is between him and his brother Amarjeet Jaiswal, the said carbine was placed on the roof by Subham Mishra, Jitendra, Amarjeet Jaiswal. On the confessional statement of Subham Mishra before the police personnel, story was changed and F.I.R. was lodged against three accused persons namely Subham Mishra, Jitendra, Amarjeet Jaiswal. He also stated that this incident was done with conspiracy of Amarjeet Jaiswal.
It is submitted by learned counsel for the applicant that applicant is a B.Sc. student and aged about 22 years. Recovery is false and planted. There is a dispute between Shesh Nath Jaiswal and Amarjeet Jaiswal (brother of Shesh Nath Jaiswal) due to which with the conspiracy of co- accused Amarjeet Jaiswal; the said incident was done. Main role of conspiracy was assigned to co-accused Amarjeet Jaiswal. There is no evidence to connect the applicant with the present matter. There is no independent witness against the applicant. Nothing was recovered from the possession of applicant. The applicant is innocent and have been falsely implicated and his career has been spoiled. He is languishing in jail since 24.5.2018 (more than three and half months) having no criminal history and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
On the other hand, learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid fact as argued by learned counsel for the applicant and admitted that applicant has no criminal history.
Considering the submission of learned counsel for the parties, facts of the case, nature of allegation and period of custody, gravity of offence, without expressing any opinion on the merits of the case, the Court is of the opinion that it is a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Subham Mishra involved in Case Crime No. 433 of 2018, under Section 7/25 Arms Act and Section 195, 511, 120-B IPC, P.S. Khorabar, District Gorakhpur be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The applicant 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
Order Date :- 17.9.2018 A. Singh