Court No. - 3
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39661 of 2018 Applicant :- Vishal Opposite Party :- State Of U.P.
Counsel for Applicant :- Mohd. Ashraf Abbasi Counsel for Opposite Party :- G.A.
Hon'ble Pritinker Diwaker,J.
Heard Mohd. Ashraf Abbasi, learned counsel for the applicant, Sri Gambhir Singh learned A.G.A. and perused the record.
This bail application has been filed on behalf of the applicant involved in Case Crime No. 44 of 2018, under Section 302 I.P.C., P.S. Nawabganj, District Kanpur Nagar.
As per prosecution case, applicant along with two others assaulted the son of the informant, resultantly, he succumbed to his injuries.
It is urged that the assault weapon has not been assigned either in the F.I.R. or in the statement of the informant under Section 161 Cr.P.C.; postmortem examination report reflects two injury (incised wound on the chest and contusion swelling on occipital bone); recovery of iron road has been made from the possession of the applicant on arrest, which is planted; there is no other evidence to implicate the applicant to the offence; there is no last seen evidence against the applicant; applicant is languishing in jail since 4.3.2018, having no criminal history and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Learned counsel for the applicant further submits that similarly placed co-accused Shani and Mukesh Rawat have already been granted bail by this Court in Crl. Misc. Bail Application Nos. 30713 of 2018 and 33878 of 2018 vide orders dated 16.8.2018 and 6.9.2018 respectively.
On the other hand, learned AGA opposes the bail but does not dispute that the identically placed accused persons have been released on bail.
Keeping in view the nature of the evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and further considering the fact that identically placed co-accused have been granted bail, without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant-Vishal be released on bail in the above case on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he 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.
However, It is made clear that in case the applicant indulges in intimidating or threatening any witness, the State or Prosecutor would be at liberty to file an application for cancellation of bail.
Order Date :- 26.10.2018 AKK