Allahabad High Court
Mithilesh Kumar vs State Of U.P. on 23 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:170347 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35771 of 2023 Applicant :- Mithilesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Manik Chandra Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Manik Chandra Yadav, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant Mithilesh Kumar seeking his enlargement on bail in Case Crime No.182 of 2023, under Sections 147, 148, 149, 323, 504, 506, 324, 307, 304 IPC, police station Soraon, district Prayagraj, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 06.04.2023, a prompt FIR dated 06.04.2023 was lodged by the first informant, namely, Virendra Kumar and was registered as Case Crime No.0182 of 2023, under Sections 147, 323, 504, 506 IPC, police station Soraon, district Prayagraj. In the aforesaid FIR, six persons, namely, Udai Singh, Mithilesh, Ajay Kumar, Rajesh Kumar, Rajendra Kumar and Dharmendra Kumar have been nominated as named accused.
As per the prosecution story as unfolded in the aforesaid FIR, in the occurrence which occurred on 06.04.2023, six persons, namely, Virendra Kumar, Jagroop Kumar, Sunil Kumar, Banwari Lal, Gurucharan and Sumitra sustained injuries. Subsequently, one of the injured, namely, Gurucharan died. Consequently, the case was converted under Section 302 IPC.
In respect of the same incident, another FIR dated 06.04.2023 was lodged from the side of the applicant i.e. accused in earlier FIR and was registered as Case Crime No.0184 of 2023, under Sections 147, 323, 354-B, 427, 452, 504, 506 IPC, police station Soraon, district Prayagraj. In the aforesaid FIR, eight persons, namely, Shiv Kumar, Sunil Kumar, Jagrup, Virendra, BanwariLal, Gurucharan, Ram Milan, Ram Krishna have been nominated as named accused.
According to the prosecution story as unfolded in the aforesaid FIR, four persons, namely, Rang Bahadur, Sukhlal, Mithilesh and Matadeen sustained injuries.
On the above premise, the learned counsel for applicant contends that the occurrence is admitted to the parties, inasmuch as, cross-first information reports have been lodged from both the sides, therefore the primary issue which is required to be decided is as to who is the aggressor. Such a question can more appropriately be decided only during the course of trial. However, up to this stage, no such evidence has emerged on record on the basis of which the aggressor in the crime in question could be identified. On the basis of above, he submits that applicant is liable to be enlarged on bail. It is next contended that similarly situate and circumstanced a not named but charge-sheeted co-accused, namely, Matadeen has already been enlarged on bail by this Court vide order dated 12.07.2023 passed in Criminal Misc. Bail Application No.27343 of 2023 (Matadeen Vs. State of U.P.). The same is on record as Annexure-9 to the affidavit. On the above premise, he contends that the case of present applicant is similar and identical to that of aforementioned not named but charge-sheeted co-accused. Up to this stage, no such distinguishing feature has emerged on the basis of which the case of the present applicant could be so distinguished from aforementioned not named but charge-sheeted co-accused Matadeen so as to deny bail to applicant. It is thus urged that in view of above and for the facts and reasons recorded in bail order of c-accused referred to above, the applicant is also liable to be enlarged on bail. Even otherwise, the applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in jail since 12.04.2023. As such he has undergone more than four months of incarceration. The police report under Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. He therefore 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.
Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this Court. According to the learned A.G.A. the criminality committed by the charge-sheeted accused is joint and common therefore, the same is incapable of being separated or segregated. As such no exception can be carved out in the case of present applicant. He, therefore, contends that no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the 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, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the occurrence giving rise to the present criminal proceeding is admitted to the parties, inasmuch as, cross-first information reports have been lodged from both the sides, there are injured from both the sides, thus the primary issue as to who is the aggressor can more appropriately be answered only during the course of trial, however up to this stage no such evidence has been discovered by the Investigating Officer on the basis of which it can be conclusively concluded as who is the aggressor, the police report under Section 173 (2) CrPC has already been submitted as such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, however in spite of above the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the clean antecedents of the applicant, the period of incarceration undergone, 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 Mithilesh Kumar, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 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 :- 23.8.2023.
Rks.