Allahabad High Court
Ghanshyam Gupta vs State Of U.P. on 25 August, 2020
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 3 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30850 of 2019 Applicant :- Ghanshyam Gupta Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Kumar Yadav Counsel for Opposite Party :- G.A. with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20193 of 2019 Applicant :- Guddoo Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Sanjeev Kumar Sharma Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Both the bail applications are connected and listed together in the list of fresh cases.
Since both the bail applications are connected together and arise out of the the same case, the same are being decided by common order.
Heard Sri Sanjay Kumar Yadav, learned counsel who is personally present on behalf of the applicant Ghanshyam Gupta in Crl. Misc. Bail Application No. 30850 of 2019.
The office has placed an email of Sri Nirvikalp Pandey for providing video conferencing for his appearance. Sri Nirvikalp Pandey and Sri Raghuvansh Mishra, learned counsels appeared through video conferencing on behalf of Guddu Yadav in the connected bail application being Crl. Misc. Bail Application No. 20193 of 2019. Sri Sudist Kumar, learned counsel for the first informant in both the matters and Sri I.P.S. Rajpoot, the learned AGA for the State are also present in Court.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicants Ghanshyam Gupta andGuddoo Yadav, seeking enlargement on bail during trial in connection with Case Crime No. 14 of 2019, under Sections 147, 148, 149, 302, 506, 34, 120-B IPC and Section 7 Criminal Law Amendment Act, registered at P.S. Sarai Lakhansi, District Mau.
Learned counsel for the applicant argued while pressing the bail application of the Ghanshyam Gupta that the applicant has been falsely implicated in the present case though the applicant and two other persons Guddu Yadav and Lalu Yadav have been specifically named in the First Information Report along with six other unknown persons who are said to have accompanied them on two motorcycles. All the accused persons have been assigned the role of firing upon Balgovind Singh as a result of which he is said to have received injuries and died. It is argued that the First Information Report was lodged by Smt. Sheela Singh, wife of the deceased after considerable delay as the occurrence is said to have taken place at about 8:00 AM but the First Information Report was lodged at about 13:52 hrs which is after a delay of about five hours wherein the distance between the place of occurrence and the police station is only five kilometers. It is argued that the delay in lodging of the First Information Report is unexplained. It is further argued while placing the postmortem of the deceased which is annexed as annexure 3 to the affidavit that the doctor has found two gun shot wound of injuries and both are having an exit wound. It is argued that the fatal shot was the injury no. 1 which was on the right side of chest whereas the second shot was in the right hand near base of index finger. It is argued that there is no specification regarding the author of the fatal shot. Learned counsel has further argued that co-accused Abhimannu Yadav @ Monu has been granted bail by a co-ordinate Bench of this Court vide order dated 06.05.2019 passed in Crl. Misc. Bail Application No. 18963 of 2019 (Abhimannu Yadav @ Monu Vs. State of U.P.), copy of the said order is annexed as annexure 8 to the affidavit and has proceeded to argue that the Court while granting bail to the co-accused has considered the fact that the role of shooting upon deceased was assigned to co-accused Lalu Yadav and Harikesh and it is then argued that even the same argument is available so far as the applicant is also concerned and his case is also distinguishable from that of co-accused Lalu Yadav and Harikesh.
Learned counsel has further while placing para 2 of the supplementary affidavit dated 01.08.2019 proceeded to state that the applicant is involved in one other case being Case Crime No. 850 of 2016 under Sections 147, 148, 149, 302, 120-B IPC and Section 7 Criminal Law Amendment Act, Police Station- Sarai Lakhansi, District Mau in which he has been granted bail vide order dated 06.10.2016, copy of the said order is annexed as annexure 1 to the supplementary affidavit being Crl. Misc. Bail Application No. 32500 of 2016 (Ghanshyam Gupta Vs. State of U.P.) passed by a co-ordinate Bench of this Court. Learned counsel thus argued that the applicant has been falsely implicated and even the criminal history of the applicant has been disclosed and explained in the supplementary affidavit which also goes to show that he has been falsely implicated in the previous case as is apparent from the order itself and in the said case he was not named in the First Information Report. The applicant is said to be in jail since 27.03.2019.
Sri Nirvikalp Pandey and Sri Raghuvansh Mishra, learned counsels while arguing the bail application of Guddu Yadav have stated that the statement of first informant Smt. Sheela Singh, copy of which is annexed as annexure 5 to the affidavit has been recorded. They have proceeded to argue that though in the First Information Report a general role of firing has been assigned to the three named accused persons which includes the applicant and six other unknown persons but in the statement of the first informant recorded under Section 161 Cr.P.C. she has qualified the role of exhortation to co-accused Shailendra and Guddu Yadav, the present applicant. It is further argued that the applicant Guddu Yadav is also reported to be involved in one case being Case Crime No. 850 of 2016 under Sections 147, 148, 149, 302, 120-B IPC and Section 7 Criminal Law Amendment Act, Police Station- Sarai Lakhanshi, District Mau in which he has been assigned the role to conspiracy only and he has been granted bail vide order dated 06.07.2017 passed by a co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 36048 of 2016, copy of the said order is annexed as annexure 8 to the bail application. It is argued that even in the said case, the applicant has been falsely implicated. The applicant is said to be in jail since 29.01.2019.
Learned counsel for the first informant and the learned AGA opposed the prayer for bail but could not dispute the arguments as raised by the learned counsel for the applicant.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, it is apparent that Ghanshyam Gupta was not named in the First Information Report, his name has surfaced during investigation, his case stands at par with that of Abhimannu Yadav @ Monu who has been granted bail except for the fact that he has a criminal history of one case in which he has been granted bail by a co-ordinate Bench of this Court and even in that case he was not named in the First Information Report and subsequently his implication had come during investigation. So far as, Guddu Yadav is concerned he is although named in the First Information Report and general allegations have been assigned to three named persons and six unknown persons of assaulting the deceased but from the postmortem report, it is apparent that the deceased has received only two gun shot injuries and even from the amongst the two injuries the first injury was fatal and subsequently during investigation the first informant herself has qualified the role of Guddu Yadav along with co-accused Shailendra Yadav as that of exhortation only, and further the criminal history of one case as has been reported which has been explained being of one case only in which he has been granted bail by a co-ordinate Bench of this Court, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial 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 applicants may be enlarged on bail.
It has been assured by the learned counsels for the both the applicants on their behalf that they are ready to co-operate with the process of law and shall faithfully make themselves available before the court whenever required.
Let the applicants- Ghanshyam Gupta andGuddoo Yadav, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount (wherein one of the sureties will be a family member) to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicants 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 applicants shall file an undertaking to the effect that they 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 applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.
(V) The applicants 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 applicants are 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 them in accordance with law and the trial court may proceed against them 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 applicants 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 :- 25.8.2020 M. ARIF