Allahabad High Court
Yogesh Kumar @ Yogesh Kushwaha vs State Of U.P. on 2 February, 2021
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48756 of 2020 Applicant :- Yogesh Kumar @ Yogesh Kushwaha Opposite Party :- State of U.P. Counsel for Applicant :- Yogendra Misra Counsel for Opposite Party :- G.A.,Nirbhay Singh Hon'ble Samit Gopal,J.
Heard Sri Yogendra Misra learned counsel for the applicant, Sri Nirbhay Singh learned counsel for the first informant, Sri Satish Kumar Singh, learned Brief Holder for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Yogesh Kumar @ Yogesh Kushwaha, seeking enlargement on bail during trial in connection with Case Crime No. 232 of 2019, under Sections 302, 201 I.P.C., registered at P.S. Eka, District Firozabad.
Counter affidavit on behalf of the first informant filed today in Court which is taken on record.
Learned counsel for the applicant states that he does not intend to file rejoinder affidavit to the same.
Learned counsel for the applicant argued that the first information report was initially lodged by one Vishesh Kumar about his seeing dead body of an unknown person lying near a 'nahar' after which inquest was conducted and later on, an information was sent to the father of the deceased who identified the same to be as that of his son after which on 12.10.2019 he gave an application to the police raising suspicion that Raju, Saurabh, Ajay and Viresh as the persons who have murdered his son. It is argued that later on the statement of the father of the deceased was recorded under Section 161 Cr.P.C. on 13.10.2019 wherein he stated the same version as that of the application dated 12.10.2019. But later on he gave another application dated 25.10.2019 to the police again wherein he stated that the said four persons namely Raju, Saurabh, Ajay and Viresh are not involved in the present case but Sonu, Yogesh, Pooki and Harendra are involved in the matter. It is argued that subsequently his statement was recorded under Section 161 Cr.P.C. where he states that the name of the said four persons as being involved in the present matter. It is argued that the deceased died as a result of firearm injury received on his body.
It is argued that the police has shown recovery of a country made pistol from the possession of the applicant but there is no evidence to show that the same has been used in the crime and there is no evidence of its corroboration in the present incident.
It is argued that co-accused Pooki@Hari Shankar has been granted bail by a co-ordinate Bench of this Court vide order dated 18.11.2020 passed in Criminal Misc. Bail Application No. 30422 of 2020 (Pooki @Hari Shankar Vs. State of U.P.), copy of which has been annexed as annexure no. 10 to the affidavit. It is pointed out that another co-accused Harendra has also been granted bail by a co-ordinate Bench of this Court vide order dated 10.12.2020 passed in Criminal Misc. Bail Application No. 30326 of 2020 (Harendra Vs. State of U.P.), copy of the said order has been produced before the Court which is taken on record. The applicant claims parity with the aforesaid co-accused persons. It is argued that the police has shown three cases registered against him out of which in one case final report has been submitted and in two other cases he is on bail. The said fact is mentioned and explained in para-13 of the affidavit. The applicant is in jail since 30.8.2020.
Per contra, learned counsel for the first informant and learned AGA opposed the prayer for bail.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Yogesh Kumar @ Yogesh Kushwaha, 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 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 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 and the 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 the applicant.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal,J.) Order Date :- 2.2.2021/Naresh