Allahabad High Court
Jitendra Kumar Srivastava vs State Of U.P. on 9 October, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:193846 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39614 of 2023 Applicant :- Jitendra Kumar Srivastava Opposite Party :- State of U.P. Counsel for Applicant :- Anchal Kumar Rao Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Anchal Kumar Rao, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant- Jitendra Kumar Srivastava seeking his enlargement on bail in Case Crime No. 355 of 2021 under Sections 302, 34, 380, 411 IPC, Police Station- Sigra District-Varanasi during the pendency of trial.
Record shows that in respect of an incident which is alleged to have occurred from 31.7.2021 to 3.8.2021, a belated F.I.R. dated 4.8.2021 was lodged by first informant Ratan Kumar Prajapati and was registered as Case Crime No. 355 of 2021 under Sections 302, 34, 380, 411 IPC, Police Station- Sigra District-Varanasi. In the aforesaid F.I.R., one person namely, Jitendra Contractor has been nominated as named accused, whereas two unknown persons (one unknown labour and his wife) have also been arraigned as accused.
At the very outset, learned counsel for applicant submits that after completion of statutory investigation of concerned case crime number in terms Chapter XII Cr.P.C., Investigating Officer submitted charge sheet dated 26.8.2021, whereby three persons namely, Jitendra Kumar Srivastava, (applicant herein) Pappu Gupra and Pooja Gupta have been charge sheeted under sections 302, 34, 380, 411 IPC.
It is next submitted by learned counsel for applicant that charge sheeted accused Pooja Gupta has already been enlarged on bail by this Court vide order dated 17.6.2023, passed in Criminal Misc. Bail Application No. 23856 of 2022 (Pooja Gupta Vs. State of U.P). For ready reference, the order dated 17.6.2023 is reproduced herein under:
"1. Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.
2. The F.I.R. has been lodged by the Secretary (Acting Manager) of Prajapati Kumhar Hitkarini Sabha, where some construction work was going on and the contractor namely, Jitendra had brought some labour for the construction work. It is further alleged that seldom, the labourers used to stay in the campus. On 31.07.2021, the contractor along with one labour, a wife of another labour (applicant) with her child, stayed in the campus. On 04.08.2021, foul smell was coming from the campus, on opening the door, he saw that one labour, whose hand and legs were tied was found dead. It is also averred that in the C.C.T.V. footage, he saw that on 03.08.2021 at about 1:53 A.M. the said contractor along with wife of another labour without informing him had left the campus.
3. Learned counsel for the applicant submits that the applicant has been falsely roped in the instant case on the ground of suspicion and the sole evidence against the applicant is that she left the campus without informing the informant, whereas no incriminating evidence is available on the face of record against the applicant except her confessional statement. He further submits that no motive has been assigned to the applicant to commit the alleged offence. He next submits that nothing has been recovered either from the possession of the applicant or on the pointing of the applicant and that the applicant was pregnant at the time of her arrest, thereafter she gave birth to a male child. He also submits that the applicant is languishing in jail along with her minor children namely, Anshika aged about 04 years and a newly born child aged about 5 months and therefore, the applicant being lady may be enlarged on bail. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 13.08.2021 having no criminal history.
4. Learned A.G.A. has opposed the prayer for bail.
5. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant, who is lady languishing in jail with her minor children, is entitled to be enlarged on bail. Hence the bail application is allowed.
6. Let applicant Pooja Gupta involved in Case Crime No. 355 of 2021 under Sections 302, 34, 380, 411 I.P.C., Police Station Sigra District Varanasi, be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-
A. The applicant shall not tamper with the evidence during the trial.
B. The applicant shall not pressurize/ intimidate the prosecution witness.
C. The applicant shall appear before the trial court on the date fixed, unless personal presence is exempted.
D. The applicant shall not commit an offence similar to the offence of which he is an accused, or suspected, of the commission of he is suspected. .
E. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above condition, the trial Court shall be at liberty to cancel the bail of the applicant in accordance with law. "
Another charge sheeted accused namely Pappu Gupta, has also been enlarged on bail by this Court vide order dated 14.10.2022, passed in Criminal Misc. Bail Application No. 26518 of 2022 (Pappu Gupta Vs. State of U.P). Same reads as under:
"Heard learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Pappu Gupta, with a prayer to release him on bail in Case Crime No.355 of 2021, under Sections 302, 34, 380, 411 IPC, Police Station Sigra, District- Varanasi, during pendency of trial.
There is allegation in the FIR that dead body of an unknown labour with hands and legs tied was found by the informant in the toilet, where construction was being carried out.
Learned counsel for the applicant has submitted that the deceased was later found to be labourer from Bihar. The applicant and his wife were implicated in this case on the basis of confessional statement of the applicant recorded by the police, wherein he has admitted that the deceased used to pressurize his wife to enter into illicit relationship. Therefore, he had caused the murder of the deceased alongwith co-accused, Jitendra. He has further submitted that no recovery was made from the applicant except Rs.900/- in his possession. The trial has not commenced. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 13.8.2021. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Having considered the submissions of the parties noted above, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of two years from the date of production of certified copy of this order. "
On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to that of aforesaid co-accused. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid co-accused so as to deny him bail. He, therefore, contends that in view of above and for the facts and reasons mentioned in the bail orders of co-accused applicant is also liable to be enlarged on bail on the ground of parity.
Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 13.8.2021. As such, he has undergone more than two years and one month of incarceration. Police Report in terms of Section 173(2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant remains crystalized yet the learned A.G.A. could not point out any such circumstance from the record, necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. Since criminality committed by charge sheeted accused is joint and common as such, same is incapable of separation and saggregation. As such no exception can be carved out in the case of present applicant. As such, no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant, with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that similarly situate and circumstanced co-accused have already been enlarged on bail, learned A.G.A. could not point out any such circumstance from record, on the basis of which, case of present applicant can be so distinguished from bailed out co-accused, so as to deny him bail, proceedings under the Gangster Act have been initiated against applicant but after the F.I.R. giving rise to present application for bail was registered, the Police Report in terms of Section 173(2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant remains crystalized yet the learned A.G.A. could not point out any such circumstance from the record, necessitating the custodial arrest of applicant during the pendency of trial, therefore irrespective of the objection raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, the applicant has made out a case for bail.
Accordingly the bail application is allowed.
Let the applicant- Jitendra Kumar Srivastava 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 9.10.2023 Arshad