Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28239 of 2021 Applicant :- Vipin Tiwari Opposite Party :- State of U.P.
Counsel for Applicant :- Kailash Prakash Pathak,Amit Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Kailash Prakash Pathak, learned counsel for the applicant and Sri B.B. Upadhyay, learned A.G.A. 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- Vipin Tiwari, seeking enlargement on bail during trial in connection with Case Crime No. 229 of 2019, under Sections 364, 302, 201, 394 I.P.C., registered at Police Station Baberu, District Banda.
Learned counsel for the applicant argued that the incident in the present case is said to have taken place from 26.02.2019 to 10.03.2019 for which first information report was registered on 10.03.2019 by Pushpendra Singh, under Section 364 I.P.C. against Shambhu Nath Dubey @ Babulley Dubey. It is argued that the applicant is not named in the first information report. It is further argued that the applicant was arrested on 29.01.2021 after a period of about two years and then his confessional statement was recorded by the police, which is an inadmissible evidence. It is argued that delay in disclosure of naming of the applicant by the police informer is unexplained and the same is a concocted evidence, just in order to give the case a different colour. It is argued that except for the said evidence, there is no other evidence whatsoever against the applicant. It is argued that co-accused Sanjay Dubey has been granted bail by this Court vide order dated 06.08.2021 passed in Criminal Misc. Bail Application No. 26999 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 29.01.2021.
Per contra, learned A.G.A. opposed the prayer for bail and argued that although the applicant is not named in the first information report and his name was disclosed on 29.01.2021 by the police informer and then he gave his confessional statement to the police. He was arrested on the basis of electronic surveillance which was through GPS, wherein, the accused persons were dragged on the basis of GPS and the communication of the dhaba owners and other persons, where the accused persons halted were recorded who states that they were travelling on the day of the incident. It is argued that as such, the implication of the applicant is there in the present case.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the applicant is not named in the first information report, his name has surfaced after about two years by the police informer and then he gave his confessional statement to the police. There is no recovery of any incriminating material either from the possession or pointing out of the applicant.
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- Vipin Tiwari, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties 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.
Order Date :- 16.8.2021 AS Rathore (Samit Gopal,J.)