Allahabad High Court
Dilbagh Singh vs State Of U.P Through Secretary Home on 10 November, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36761 of 2022 (E-File) Applicant :- Dilbagh Singh Opposite Party :- State Of U.P Through Secretary Home Counsel for Applicant :- Shweta Pandey,Punita Pandey Counsel for Opposite Party :- G.A.,Manoj Kumar Tripathi,Vinod Kumar Tirpathi Hon'ble Vivek Kumar Birla,J.
Heard Ms. Shweta Pandey, learned counsel for the applicant, Sri Amit Kumar, learned counsel holding brief of Sri Manoj Kumar Tripathi, learned counsel for the informant and learned AGA for the State and perused the record.
Sri Shantanu Bharatdwaj, learned counsel has appeared and states that he has received instructions on behalf of the victim.
This application has been filed through E-File, therefore, he is permitted to file his vakalatnama in the office.
The present bail application filed on behalf of the applicant Dilbagh Singh seeking his bail in connection with Case Crime No. 703 of 2020, under Sections 147, 148, 149, 302, 307 IPC, Police Station Chandpur, District Bijnor.
At the very outset, learned counsel for the applicant is claiming parity on the ground that the accused Kosindra has already been granted bail vide order dated 22.9.2022 passed in Criminal Misc. Bail Application No. 1620 of 2022 (Kosindra vs. State of UP) and therefore, the applicant herein is entitled to be enlarged on bail on the ground of parity. It is however submitted that the applicant is innocent with no previous criminal history and is in jail since 21.7.2019 and in case he is enlarged on bail, he will not misuse the liberty of bail.
The order dated 22.9.2022 passed in Criminal Misc. Bail Application No. 1620 of 2022 (Kosindra vs. State of UP) is quoted as under:
"Heard Sri Vivek Kumar Singh, learned counsel for the applicant; Sri Manoj Kumar Tripathi, learned counsel for the informant; learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Kosindra, with a prayer to release him on bail in Case Crime No.703 of 2020, under Sections 147, 148, 149, 302, 307, 34, 120-B IPC, Police Station Chandpur, District- Bijnor, during pendency of trial.
There is allegation against six accused persons in the FIR regarding causing of indiscriminate firing which resulted into death of one person.
Learned counsel for the applicant has submitted that two bullet injuries have been found on the left side top of shoulder and left side back of chest of the deceased and two bullets have been recovered and preserved for forensic lab. The recovery of one country-made pistol of 315 bore was shown from the applicant on the pointing out of co-accused, Sukhdev @ Sukhvinder and Neeraj. Pistol of 12 bore was recovered, which has not been used in the alleged offence. It is a case of false implication. It is not clear, who is author of the aforesaid injury suffered by the deceased out of six accused persons including the applicant. The applicant has been falsely implicated in this case. He has criminal history of 10 cases explained in paragraph no.18 of the affidavit in support of the bail application and is languishing in jail since 01.7.2021. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned A.G.A. and learned counsel for the informant have opposed the prayer for bail of the applicant. From the case diary produced before this Court, submission of learned counsel for the applicant appears to be correct.
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."
It is additionally submitted that there was no recovery from the applicant and general roll has been assigned to all the persons and the applicant has not criminal history.
Learned AGA has opposed the prayer for grant of bail to the applicant.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Dilbagh Singh, who is involved in aforementioned Case 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(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 IPC.
(iii) 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., MAY BE ISSUED AND IF APPLICANT 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 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 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
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 :- 10.11.2022 Abhishek