Allahabad High Court
Jitai Yadav @ Vijay Bahadur Yadav And ... vs State Of U.P. on 18 March, 2021
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3462 of 2021 Applicant :- Jitai Yadav @ Vijay Bahadur Yadav And Another Opposite Party :- State of U.P. Counsel for Applicant :- Raj Kumar Tripathi Counsel for Opposite Party :- G.A.,Bal Krishna Rai Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Raj Kumar Tripathi, Advocate for applicants, learned A.G.A. for State and Sri Bal Krishna Rai, Advocate for First Informant.
2. Applicants-Jitai Yadav alias Vijay Bahadur Yadav and Sanjay Yadav alias Jay Prakash Yadav have approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of their Bail Application vide order dated 20.11.2020 passed by Additional Sessions Judge Fourth/ Special Judge (E.C. Act), Jaunpur in Case Crime No.86 of 2020, under Sections 147, 148, 149, 302, 323, 504 IPC, Police Station Gaura Badshahpur, District Jaunpur.
3. Learned counsel for the applicants submits applicants alongwith five others were named in the FIR with specific allegation of causing death of deceased alongwith co-accused, Ram Ajor Yadav. Learned counsel submits that co-accused, Ramkesh Yadav and Brijesh Yadav have been granted bail by this Court vide order dated 23.11.2020 on the ground that their case is distinguishable from the case of applicants and co-accused Ram Ajor Yadav. It is further argued that initially a NCR was lodged against accused, Prakash Singh, Rajesh and applicants herein. Later on when deceased, Chandrika died, a FIR was lodged against seven named persons. He further argued that in the statements recorded during investigation name of Applicant-2, Sanjay Yadav alias Jay Prakash Yadav was not mentioned as one of the assailant, who caused death of deceased. However, name of Applicant-1, Jitai Yadav alias Vijay Bahadur Yadav was remained consistent to be one of the assailant, who caused death of deceased. The argument is that as there is inconsistency in the statements of prosecution witnesses recorded during investigation regarding names of assailants who actually caused death of deceased, therefore, even the Applicant-1, Jitai Yadav alias Vijay Bahadur Yadav is entitled for parity to the case of Applicant-2, Sanjay yadav alias Jay Prakash Yadav. Lastly, it is submitted that applicants have no criminal history and are languishing in jail since 16.06.2020 and in case, they are released on bail, they will not misuse the liberty of bail and will cooperate in trial.
4. Learned A.G.A. has opposed the prayer of bail and submits that there are serious allegations against both applicants, who caused death of deceased, who died due to anti-mortem injuries which are four in numbers out of which injuries no. 1 and 2 are on head having fractured skull bone. He, however, has not disputed that name of Applicant-2, Sanjay Yadav alias Jay Prakash Yadav is not consistent in the statements of evidence recorded during investigation to be one of the main assailant.
5. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that grant or refusal of bail is entirely within the discretion of the Judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
6. It is apparent from the submissions and material available on record that name of Applicant-1, Jitai Yadav alias Vijay Bahadur Yadav is remained consistent in the statements of witnesses recorded during investigation to be one of the assailant, who caused death of deceased as there is a direct evidence of involvement of Applicant-1, Jitai Yadav alias Vijay Bahadur Yadav in a crime which is serious in nature, therefore, no case of bail is made out and this bail application is liable to be rejected qua to Applicant-1, Jitai Yadav alias Vijay Bahadur Yadav.
7. So far as bail application qua to Applicant-2, Sanjay Yadav alias Jay Prakash Yadav is concerned, it apparent from the evidence of witnesses recorded during investigation that his name is not consistently mentioned to be one of the main assailant who caused death of deceased and as such his case is distinguishable from the case of Applicant-1, Jitai Yadav alias Vijay Bahadur Yadav; and also looking to the fact that the Applicant-2 is in jail since 16.06.2020 and has no criminal history, this Court is of the view that a case of grant of bail is made out qua to Applicant-2, Sanjay Yadav alias Jay Prakash Yadav.
8. Let Applicant-2, Sanjay Yadav alias Jay Prakash Yadav 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 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and 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 applicant.
9. 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.
10. The bail application is disposed of.
11. The observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 18.3.2021 AK