Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48892 of 2020 Applicant :- Vikash@ Deepak Opposite Party :- State of U.P.
Counsel for Applicant :- Vivek Kumar Singh,Mayank Yadav Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Vivek Kumar Singh, learned counsel for the applicant, Sri Raj Kumar Gupta, 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- Vikash alias Deepak, seeking enlargement on bail during trial in connection with Case Crime No.86 of 2019, under Sections 302, 506, 120-B I.P.C., registered at Police Station Partapur, District Meerut.
This is the second bail application. The first bail application of the applicant was rejected by this Court vide order dated 14.02.2020 passed in Criminal Misc. Bail Application No.5856 of 2020 Vikash @ Dipak Vs. State of U.P. as some relevant documents for which arguments were placed were not annexed.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that the applicant is not named in the FIR which has been registered by Smt. Saroj against Raju and Situ only. The first informant in her statement under Section 161 Cr.P.C. has reiterated the same as stated by her in the FIR. Subsequently Ram Singh was interrogated as an independent witness who has stated that in the present case, there is a gossip in the village that Lalit is involved and naming of Raju and Situ is false. The incident in the present case alleged to have taken place on 10.02.2019 and after 15 days of the incident i.e. on 25.02.2019 Aniket and Rajesh Sharma have surfaced as eye-witnesses of the incident and named Vikash @ Deepak (the present applicant) and one Aslam as the accused persons who are said to have fired upon the deceased. The said statements are annexed as annexure no.7 to the affidavit which have been referred are under Section 161 Cr.P.C. Subsequently charge sheet has been submitted against the applicant, co-accused Lalit and co- accused Aslam. The trial in the present case has started in which the statements of first informant Smt. Saroj was recorded as P.W.1, statement of Rajesh has been recorded as P.W.2 and statement of Aniket has been recorded as P.W.3 who all claim themselves to be eye-witnesses but have not supported the prosecution case and have been declared hostile. Identically placed co-accused Aslam has been granted bail by coordinate Bench of this Court vide order dated 04.02.2021 passed in Criminal Misc. Bail Application No.39211 of 2020, copy of the same is annexed as S.A-4 to the supplementary affidavit. It is further argued that although there is a recovery of country-made pistol shown from the possession of the applicant at the time of his arrest for which a different FIR has been registered, copy of which is annexed as Annexure No.8 to the affidavit but there is no evidence to corroborate the use of the said weapon in the present case. The applicant is not having any previous criminal history but after his arrest in the present case, a case under Sections 307, 427 IPC and a case under Section 25 Arms Act were lodged relating to the said recovery and firing on the police party in which no one has received injury. In the case under Sections 307, 427 IPC, the applicant has been granted bail by the court below, copy of the said order is annexed as Annexure no.13 to the affidavit. The applicant is in jail since 16.03.2019.
Per contra learned counsel for the State opposed the prayer for bail and argued that the applicant has been involved in the present case on the basis of statement of two witnesses but could not dispute the arguments as raised by learned counsel for the applicant.
After hearing the counsel for the parties and perusing the record, it is apparent that the applicant is not named in the FIR. His name has surfaced for the first time in the statement of Aniket and Rajesh Sharma who are the alleged eye- witnesses but the first informant Smt. Saroj, Aniket and Rajesh Sharma have been declared hostile by the trial court. Identically placed co-accused Aslam has been granted bail by coordinate Bench of this Court.
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-Vikash alias Deepak, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of his family member) 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 :- 17.9.2021 Gaurav