Court No. - 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27714 of 2021 Applicant :- Vinod Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Diwanshu Tiwari,Mithilesh Kumar Shukla Counsel for Opposite Party :- G.A.,Om Prakash Katiyar,Shailendra Kumar Tripathi
Hon'ble Rahul Chaturvedi,J.
Heard Sri Mithilesh Kumar Shukla, learned counsel for the applicant, Sri Om Prakash Katiyar, learned counsel for the complainant as well as Sri Satyendra Nath Tiwari, learned A.G.A for the State and perused the record.
By means of this application, the applicant who is involved in case crime no.347 of 2020, under Section 304 IPC, Police Station-Tirwa, District-Kannauj is seeking enlargement on bail during the trial.
Contention raised by learned counsel for the applicant is that for the incident of 21.09.2020, the present FIR was lodged on 01.10.2020 after intervention of higher authority from Lucknow by one Ram Prakash against three named accused persons. From the FIR, it is clear that the role attributed to the applicant is of heated altercation with the deceased. However, the other co-accused person namely Aman@Chota has committed this offence. After lodging of the FIR, the police has submitted the report under section 173(2) Cr.P.C. on 10.03.2021 under section 279 and 304A IPC against Aman@Chota exonerating the applicant and Balram in the commission of the offence. However, further investigation was ordered and thereafter holding in-depth probe into the matter, police has submitted the report under section 173(2) Cr.P.C. under section 304 IPC while relying upon the two independent statement of Sher Singh and Jawahar Singh recorded on 21.03.2021 almost after delay of five months. It is indeed shocking and surprising that the eye witness has given his statement after the delay of five months. The next contention is that there is no motive to that effect. The applicant is languishing in jail since 02.06.2021.
Per contra, learned counsel for the complainant has drawn the attention of the Court to the bail rejection order of co-accused Aman@Chota whose bail application was rejected by co-ordinate Bench of this Court on 17.08.2021.
I have perused the bail rejection order of Aman@Chota and the role attributed to the applicant is clearly distinguishable as he is the main author of this incident and bail application was rightly rejected by the co-ordinate Bench of this Court.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant, Vinod Kumar, who is involved in the aforesaid 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(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 HIS 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 :- 28.10.2021 Sumit S