Allahabad High Court
Dinesh And Another vs State Of U.P. on 10 October, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:195324 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39289 of 2023 Applicant :- Dinesh And Another Opposite Party :- State of U.P. Counsel for Applicant :- Durga Tiwari Counsel for Opposite Party :- G.A.,Ganesh Mani,Sugandha Yadav,Vinod Kumar Yadav with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40432 of 2023 Applicant :- Suresh Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Durga Tiwari Counsel for Opposite Party :- G.A.,Ganesh Mani,Sugandha Yadav,Vinod Kumar Yadav Hon'ble Rajeev Misra,J.
1. Heard Mrs. Durga Tiwari, the learned counsel for applicants-Dinesh, Anil and Suresh Yadav, the learned A.G.A. for State and Mr. Ganesh Mani and Mr. Vinod Kumar Yadav, the learned counsel representing first informant.
2. Perused the record.
3. These applications for bail have been filed by applicants-Dinesh, Anil and Suresh Yadav seeking their enlargement on bail in Case Crime No. 0124 of 2023, under Sections 147, 323, 504, 506, 427, 304, 325, 308 IPC, P.S. Tarya Sujan, District Kushinagar during the pendency of trial.
4. At the very outset, the learned counsel for applicants submits that co-accused Chhabila Yadav has been enlarged on bail by this Court vide order dated 04.08.2023 passed in Criminal Misc. Bail Application No. 30691 of 2023 (Chhabila Yadav Vs. State of U.P.). For ready reference, the order dated 04.08.2023 is reproduced hereinin-under:
"Heard Mrs. Durga Tiwari, the learned counsel for applicant, the learned A.G.A. for State and Mr. Prakash Sharma, Advocate, who has put in appearance on behalf of first informant by filing his vaklatanama in Court today, which is taken on record.
Perused the record.
This bail application has been filed by the applicant Chhabila Yadav seeking his enlargement on bail in Case Crime No. 0124 of 2023, under Sections 147, 323, 504, 506, 427, 304, 325, 308 IPC, P.S. Tarya Sujan, District Kushinagar during the pendency of trial.
Record shows that in respect of an incident, which is alleged to have occurred on 02.05.2023, a delayed F.I.R. dated 25.5.2023 was lodged by first informant Indra Jeet Yadav and was registered as Case Crime No. 0124 of 2023, under Sections 147, 323, 504, 506, 427, 304, 325, 308 IPC, P.S. Tarya Sujan, District Kushinagar. In the aforesaid F.I.R., nine persons namely Navneet Yadav, Sujeet Yadav, Anil Yadav, Golu, Suresh, Dinesh, Chhabila (applicant herein), Raunak and Vijay have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that named accused who formed an unlawful assembly assaulted Khushi Yadav, brother of the first informant, Baliram Yadav, uncle of first informant, Kanchan Yadav, father of the first informant and other persons of the family of first informant.
After aforementioned F.I.R. was lodged, one of the injured Kanchan Yadav succumbed to the injuries sustained by him. The Doctor who conducted the autopsy of the body of the deceased opined that the cause of death of deceased was coma as a result of ante mortem injuries. Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-
(1) Dressing of skull happened after opening dressing stapled injury seen of size 15 cm in C shape on right parietal temporal region with 31 stables. Another stitched injury with 6 stitched present at top of head. After cutting skin underneath vault is fractured. Clot and hematoma present.
Learned counsel for applicant contends that in the incident giving rise to present criminal proceedings, two persons have sustained injuries, whereas one person has died. However, the author of the fatal ante mortem injuries sustained by the deceased has not been specified either in the F.I.R. or in the statements of the witnesses examined under Section 161 Cr. P. C.. The role assigned to named accused is common. She, therefore, contends that since the author of the fatal injury sustained by the deceased has not been disclosed by the prosecution itself, the applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 8.5.2023. As such, he has undergone almost three months of incarceration. Upto this stage no such material has emerged necessitating the custodial arrest of applicant during the pendency of trial. She, therefore, contends 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 the trial.
Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a named accused, therefore, he does not deserve any indulgence by this Court. On account of the act of applicant along with named accused, one person has lost his life, whereas two others have sustained injuries. The criminality committed by applicant and other named accused is joint and common. Therefore, same is incapable of separation or segregation. As such, no sympathy be shown by this Court in favour of applicant.
Having heard the learned counsel for applicant, the learned A.G.A. for state, the learned counsel for first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the author of fatal head injury sustained by the deceased has not been specified either in the F.I.R., nor the same has been specified in the statements of the witnesses examined under Section 161 Cr. P. C., coupled with the fact that there are 9 accused named in the F.I.R. giving rise to present criminal proceedings, general role has been assigned to all the accused and considering the clean antecedents of applicant, the period of incarceration undergone, coupled with the fact that neither the learned A.G.A. nor the learned counsel for first informant could point out any such circumstance from the record necessitating the custodial arrest of the applicant, during the pendency of investigation/trial, but without making any comments on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Chhabila Yadav involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two heavy 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(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., 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.
(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 him 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 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 :- 4.8.2023"
5. The above order dated 04.08.2023 was corrected by this Court vide order dated 11.08.2023. The same is extracted herein-under:-
"Ref: Correction Application Heard Ms. Durga Tiwari, the learned counsel for applicant and the learned A.G.A. for State.
This correction application for bail has been filed by applicant seeking correction in the order dated 4.8.2023.
Learned counsel for applicant submits that in the second line of 4th paragraph of order dated 4.8.2023, the date of F.I.R. has wrongly been transcribed as 25.5.2023, whereas correct date is 3.5.2023. She, therefore, submits that aforesaid mistake be corrected accordingly.
Prayer made by learned counsel for applicant is bonafide. Same is not opposed by learned A.G.A.
Accordingly, it is allowed.
It is thus provided that in place of date 25.5.2023 occurring in second line of 4th paragraph of order dated 4.8.2023, the date 3.5.2023 shall be read.
This correction shall form part of earlier order dated 4.8.2023.
With the aforesaid directions, this correction application is finally disposed of.
Order Date :- 11.8.2023"
6. On the above premise, the learned counsel for applicants contends that the case of present applicant is similar and identical to that of bailed out co-accused Chhabila Yadav. She also contends that there is no such distinguishing feature on the basis of which case of present applicants can be so distinguished from the aforesaid bailed out co-accused so as to deny him bail. On the above premise, it is urged that in view of above and for the facts and reasons recorded in the bail order of bailed out co-accused, applicants are also liable to be enlarged on bail on the ground of parity.
7. Even otherwise applicants are men of clean antecedents inasmuch they have no criminal history to their credit except the present one. Applicants are in custody since 05.05.2023 and 08.05.2023. As such, they have under-gone more than five months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. Referring to the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the learned counsel for applicant submits 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 the trial.
8. Per contra, the learned A.G.A. for State and the learned counsel for first informant have vehemently opposed the prayer for bail. They submit that since applicants are named as well as the charge sheeted accused, therefore they do not deserve any indulgence by this court. Criminality committed by applicant is joint and common. As such, same is incapable of being separated or segregated. However, they could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to record at this stage.
9. Having heard the learned counsel for applicants, the learned A.G.A. for State, the learned counsel for first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicants coupled with the fact that case of present applicants is similar and identical to that of bailed out co-accused Chhabila Yadav, there is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from the aforesaid bailed out co-accused so as to deny him bail, police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised, yet in spite of above, the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance for the record necessitating the custodial arrest of applicant during the pendency of trial, the clean antecedents of applicant, the period of incarceration undergone, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but without expressing any opinion on the merits of the case, applicants have made out a case for bail
10. Accordingly, the bail applications of applicants are allowed.
11. Let the applicants-Dinesh, Anil and Suresh Yadav involved in aforesaid case crime number be released on bail on their 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) Applicants will not tamper with prosecution evidence.
(ii) 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) Applicants will not indulge in any unlawful activities.
(iv) Applicants will not misuse the liberty of bail in any manner whatsoever.
12. 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 of applicants and send them to prison.
Order Date :- 10.10.2023 YK