Court No. - 86
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47909 of 2018 Applicant :- Vinay Upadhyay Opposite Party :- State Of U.P.
Counsel for Applicant :- Krishna Datta Tiwari,Rakesh Kumar Pathak,S P Lal Counsel for Opposite Party :- G.A.,Brijesh Bahadur Singh,Ram Jeet Yadav,Shailendra Yadav,Sharad Kumar Srivastava
Hon'ble Ali Zamin,J.
Supplementary affidavit filed on behalf of applicant, which is taken on record.
Heard Sri Sandeep Kumar Srivastava learned counsel for the applicant, Sri Sharad Kumar Srivastava learned counsel for the complainant as well as learned A.G.A. for the State and perused the material on record.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.193 of 2018, under Sections 307, 504 and 506 I.P.C., Police Station Badlapur, District Jaunpur.
Learned counsel for the applicant submits that according to prosecution version accused Vinay, Amit and Yogesh started abusing to the injured Harkesh Yadav, on his objection Vinay having a D.B.B.L. gun fired at him on account of which he fell down. He has further submitted that during investigation no offence against Yogesh has been found and co-accused Amit has been granted bail by the trial court. He has also submitted that injury nos.2 and 3 have been caused by hard and blunt object, injury nos.2 and 4 according to doctor are swelling and injury no.1 was advised for x-ray of skull. In x-ray report no bonny injury of skull has been found. According to doctor C.T. Scan of brain reveals no remarkable intracranial abnormality, extracted Material Density is seen subgenera tissues of right parental region. A cross report of the incident was given to the police station which has been registered as N.C.R. under section 323, 504 and 427 I.P.C. The applicant was also medically examined on 04.08.2018 by the police. He submits that the D.B.B.L. gun used in the incident alleged to have been recovered and according to recovery memo the owner of the gun is uncle of the applicant Sri Om Shanker Upadhyay. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that there is no previous criminal history of the applicant and is languishing in jail since 04.08.2018.
Per contra, Sri Sharad Kumar Srivastava learned counsel for the complainant as well as learned A.G.A. for the State have vehemently opposed the bail prayer of the applicant and submitted that in the F.I.R. itself the role of causing injury by D.B.B.L. gun has been assigned to the applicant and as per medical report fire arm injury has been found, therefore, the applicant is not entitled for bail.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, nature of injury as per medical report, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- Vinay Upadhyay involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-
(i) The applicant shall file an undertaking to the effect that he will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant shall not seek any adjournment on the dates 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 his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
Order Date :- 21.8.2019 Jitendra