Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33024 of 2021 Applicant :- Surendra @ Shailendra Opposite Party :- State of U.P.
Counsel for Applicant :- Gaurav Kakkar,Raghvendra Prakash Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Gaurav Kakkar, learned counsel for the applicant and Sri Akhilesh Kumar Tripathi, learned counsel 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-Surendra alias Shailendra, seeking enlargement on bail during trial in connection with Case Crime No. 291 of 2021, under Sections 147, 148, 149, 302, 504, 506, 34 I.P.C. and Section 7 of the Criminal Law Amendment Act, registered at Police Station Chandpur, District Bijnor.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that although the applicant is named in the first information report along with four other accused persons namely Ajay Singh, Nikhil Kumar, Shailendra Singh and Sushil Kumar, who have been stated to have come to the place of the first informant, wherein, Ajab Singh is said to have fired upon Sanjay the deceased which was witnessed by Brahampal, Kalyan and Ranpal after which all the accused persons resorted to indiscriminate firing and ran away extending threats to the persons present there and then the deceased was taken in an injured condition to C.H.C. Hospital, where he was declared dead by the doctor. It is argued that as per the first information report, the case of the prosecution is of firing by Ajab Singh upon the deceased Sanjay due to which he has died. It is argued that even the first informant in his first statement recorded under Section 161 Cr.P.C. and second statement recorded under Section 161 Cr.P.C., has reiterated the same.
Learned counsel has further argued that Brahampal, Kalyan and Ranpal who are the alleged eye-witnesses to the incident have also assigned the specific role of firing upon the deceased by Ajab Singh. Learned counsel has placed postmortem examination report of the deceased and has argued that although the doctor has noted three injuries on his body but two injuries are firearm wounds of entry and one injury is an exit wound. The doctor has further found one bullet from the injury which did not have an exit wound. It is further argued that the prosecution has shown recovery of a 12 bore country-made pistol from the pointing out of the applicant which was not the weapon of assault, as the deceased as per the postmortem report had received injuries from bullets. It is argued that as such, the role of the applicant is distinguishable with that of co-accused Ajab Singh who has been assigned the specific role of firing upon the deceased. It is further argued that co-accused Parvendra Kumar has been granted bail by this Court vide order dated 21.09.2021 passed in Criminal Misc. Bail Application No.30474 of 2021. It has also been pointed out that the applicant is not having any criminal history as stated in para 23 of the affidavit and he is in jail since 07.06.2021.
Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail and argued that the applicant has been assigned the role of joining hands with the other co-accused persons and thereby resorted to indiscriminate firing, after the firing upon the deceased Sanjay was done by Ajab Singh. It is argued that there is recovery of a weapon on the pointing out of the applicant. It is further argued that the presence of the applicant is there and the witnesses and the first informant have stated about his presence at the place of occurrence and as such, the prayer for bail be rejected.
After having heard the learned counsel for the parties and perusing the record, it is apparent that although the applicant is named in the first information report but the role of firing upon the deceased is assigned to co-accused Ajab Singh. The applicant along with other co-accused persons have been assigned the role of indiscriminate firing and the deceased has received two firearm wounds of entry and there was one exit wound and from the other wound, there was a recovery of a bullet. The specification of firing upon the deceased is assigned to co-accused Ajab Singh. Co-accused Parvendra Kumar has been granted bail by this Court.
The case of the applicant is distinguishable with that of co-accused Ajab Singh.
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- Surendra alias Shailendra, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties will be of family members) 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 :- 27.9.2021 Gaurav