Allahabad High Court
Umesh (Second Bail Appl.) vs State Of U.P. on 28 September, 2020
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 29 Case :- BAIL No. - 7256 of 2019 Applicant :- Umesh (Second Bail Appl.) Opposite Party :- State of U.P. Counsel for Applicant :- Arti Rawat,Avikshit Mishra Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
The case is called out for virtual hearing.
Learned counsel for the applicant, Sri Avikshit Mishra, Advocate and learned A.G.A. for the State, Sri Pankaj Pandey, Advocate are connected through video conferencing. A copy of the bail application has already been received in the office of G.A. The present bail application has been filed on behalf of the applicant involved in Case Crime No.269 of 2017 under Sections 147, 148, 149, 452, 302/34 I.P.C., Police Station - Harpalpur, District - Hardoi.
The occasion of the second bail application has arisen on rejection of first bail plea of applicant by a co-ordinate Bench of this Court vide order dated 22.04.2019, the relevant portion whereof is quoted hereunder:-
"Without expressing any opinion on the merits of the case and considering the submissions advanced, I find that no good ground is made out for enlarging the applicant on bail.
The bail application of the applicant Umesh, involved in Case Crime No.269 of 2017, under Sections 147, 148, 149, 452, 302, 34 IPC., Police Station Harpalpur, District Hardoi is, accordingly, rejected."
However, the court vide the same order directed the trial court to conclude the trial within one year. Learned counsel for the applicant and learned A.G.A. had no disagreement with regard to the status of the case, the case still remains running in the trial court and is not concluded.
The aforesaid quoted portion of the order made it clear that the merit of the case was not discussed and Court itself observed that no good ground is made out and rejected the bail application.
Learned counsel for the accused-applicant submits that after rejection of the first bail application, this Court while entertaining and allowing the bail application of the other co-accused Akhilesh, Naresh and Avadhesh observed in its order as follows:-
"As per version of the F.I.R., on 7.8.2017 in the night at about 12.30 when the deceased Jawahar Lal was sleeping in his house, accused persons, who were five in number inflicted injury with Banka to him and due to which, he sustained serious injury. Thereafter, he was taken to the hospital for treatment where he succumbed to his injury. On hearing commotion, the complainant Pradeep, who is son of the deceased and Saroj reached on the spot and miscreants were recognized in the light. It is stated that in fact the deceased was having six injuries, which were all incised wounds. It is further stated that during the course of investigation, statement of one Mohan Lal, complainant was recorded, wherein he has stated that he had seen that the deceased was lying on the Takht, accused persons had inflicted injury with Banka. However, when the statement of another witness Pradeep, who is son of the deceased was recorded, he has stated that on the fateful night, he had heard some noise and when he awoke, he had seen that co-accused Amar Singh, who was having Banka in his hand had inflicted injury on the head of the deceased and the witnesses have cried and had seen that the present applicants were standing by the side, who were having Lathi - Danda in their hands. These witnesses have given their statements to the effect that the applicants were having Lathi - Danda whereas as per post mortem report, there is no injury of Lathi - Danda and all the injuries were of incised wounds."
In the light of this subsequent development the present second application for bail on the ground of parity is moved by him.
Learned counsel for the bail applicant vehemently pressed that the present bail applicant is equally circumstanced with co-accused Akhilesh, Avadhesh and Naresh and assigned with the similar role of presence at the scene of crime armed with lathi and danda. He further submitted that the eye witness Pradeep S/o deceased Jawahar has given statement wherein he specifically assigned the role of inflicting banka over the body of Jawahar while he was sleeping by the co-accused Amar Singh only and rest of the four co-accused namely Akhilesh, Avadhesh, Umesh and Naresh standing near the chappar armed with lathi and danda. He further drew the attention towards the statement of Pradeep and complainant Mohanlal that Mohanlal reached at the spot on hearing cries of eye witness Pradeep, thus he cannot be termed as eye witness. The post mortem report itself made clear that anti mortem injury on the body of deceased Jawahar was incised wound and banka was assigned to and recovered from the accused-Amar Singh, therefore, the present accused-applicant, Umesh has no role in causing death of the deceased Jawahar. Therefore, on the ground of parity, the present bail applicant is also entitled to grant of bail. The bail order of this Court dated 20.05.2019 is made Annexure No.3 to the affidavit in support of the application for seeking bail by the present accused-applicant.
Learned counsel for the bail applicant further submits that the applicant is languishing in jail since 26.08.2017. There is no previous criminal history of the accused applicant and there is no likelihood that the accused applicant after release on bail may flee anyway from the process of law or will misuse the liberty of bail.
Learned A.G.A has not disputed the aforesaid facts.
Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties and ground of parity, the present accused-applicant is entitled to be released on bail. The bail application is allowed.
Let applicant (Umesh) be released on bail in Case Crime No.269 of 2017 under Sections 147, 148, 149, 452, 302/34 I.P.C., Police Station - Harpalpur, District - Hardoi on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the 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.
Order Date :- 28.9.2020/Gaurav/-