Allahabad High Court
Umashankar vs State Of U.P. on 15 December, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:238093 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50345 of 2023 Applicant :- Umashankar Opposite Party :- State of U.P. Counsel for Applicant :- Aftab Alam Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Aftab Alam, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Umashankar seeking his enlargement on bail in Case Crime No. 121 of 2022, under Sections 376D, 344, 506, 120B of I.P.C., Police Station-Utraon, District-Prayagraj during the pendendy of trial.
5. Record shows that in respect of an incident which is alleged to have occurred on 03.06.2022 a delayed F.I.R. dated 16.06.2022 was lodged by first informant Nargish Begam (mother of the prosecutrix) and was registered as Case Crime No. 121 of 2022, under Sections 376D, 344, 506, 120B of I.P.C., Police Station-Utraon, District-Prayagraj In the aforesaid F.I.R., seven persons namely: (1) Raju (2) Saurabh (3) Ram Babu (4) Sonu (5) Umashankar (6) Dheerendra and (7) Ajay have been nominated as named accused, whereas, two unknown persons have also been arraigned as accused.
6. At the very outset, the learned counsel for applicant contends that as many as five of the named accused persons have already been enlarged on bail, whereas, one accused person has been granted the benefit of anticipatory bail. The details of the same are as under:-
7. Criminal Misc. Bail Application 43928 of 2022 (Sonu Vs. State of U.P.) was allowed vide order dated 15.03.2023. For ready reference same are reproduced hereinunder:-
"Heard Sri Hanuman Prasad Mishra, learned counsel for the applicant, learned counsel 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 Sonu, seeking enlargement on bail during trial in connection with Case Crime No. 121 of 2022, under sections 376-, 342, 506 IPC, P.S. Urtraon, District Prayagraj.
The submission advanced by learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The statement of the victim recorded under sections 161 as well as 164 Cr.P.C. is contradictory to each other. According to report of Radiologist the age of the victim is 18-20 years. The first information report of the incident has been lodged after 23 days delay. From the perusal of the first information report, it is clear that victim was having love affairs with the applicant and she was making pressure upon the applicant to marry with her, but due to relation the other co-accused opposing the marriage. The victim is consenting party with the applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. 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. It is further contended by learned counsel for the applicant that the applicant is languishing in jail since 26.06.2022 having no criminal history.
Per contra, learned AGA for the State has 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- Sonu, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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 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."
8. Criminal Misc. Bail Application 32161 of 2023 (Raju Vs. State of U.P.) was allowed vide order dated 24.07.2023. For ready reference same is extracted hereinunder:-
"1. Heard Mr. Jai Prakash Prasad, the learned counsel for applicant and the learned A.G.A. for State.
2. This application for bail has been filed by applicant Raju seeking his enlargement on bail in Case Crime No. 121 of 2022, under Section 376-D, 342, 506 I.P.C., Police Station Utraon, District Prayagraj during the pendency of trial.
3. Record shows that in respect of incidents which are alleged to have occurred from 24.05.2022 to 03.06.2022, a delayed F.I.R. dated 16.06.2022 was lodged by first informant Smt. Nargis Begum (mother of the prosecutrix) and was registered as Case Crime No. 121 of 2022, under Section 376-D, 342, 506 I.P.C., Police Station Utraon, District Prayagraj. In the aforesaid F.I.R. seven persons namely (1) Raju (2) Saurabh (3) Rambabu (4) Sonu (5) Oma Shanker (6) Dhirendra (7) Ajay and three unknown persons have already nominated as named accused.
4. The gravamen of the allegations made in the F.I.R. is to the effect that the three of the named accused deliberately and forcibly dislodged the modesty of the prosecutrix by committing rape upon her.
5. At the very outset, the learned counsel for applicant contends that co-accused Sonu has already enlarged on bail vide order dated 15.03.2023 passed in Criminal Misc. Bail Application No. 43928 of 2022 (Sonu Vs. State of U.P.). For ready reference the same is reproduced herein under:
"Heard Sri Hanuman Prasad Mishra, learned counsel for the applicant, learned counsel 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 Sonu, seeking enlargement on bail during trial in connection with Case Crime No. 121 of 2022, under sections 376-, 342, 506 IPC, P.S. Urtraon, District Prayagraj.
The submission advanced by learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The statement of the victim recorded under sections 161 as well as 164 Cr.P.C. is contradictory to each other. According to report of Radiologist the age of the victim is 18-20 years. The first information report of the incident has been lodged after 23 days delay. From the perusal of the first information report, it is clear that victim was having love affairs with the applicant and she was making pressure upon the applicant to marry with her, but due to relation the other co-accused opposing the marriage. The victim is consenting party with the applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. 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. It is further contended by learned counsel for the applicant that the applicant is languishing in jail since 26.06.2022 having no criminal history.
Per contra, learned AGA for the State has 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- Sonu, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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 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"
6. On the above premise, he contends that the case of the present applicant is similar and identical to that of co-accused Sonu who has already been enlarged on bail. There is no such distinguishing feature on the basis of which the case of the present applicant could be so distinguished from bailed out co-accused so as to deny him bail. He, therefore contends that in view of above and for the facts and reasons recorded in the bail order of aforementioned bailed out 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 10.06.2022. As such he has undergone more than one year and one month of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the course 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.
7. Per contra, the learned A.G.A has 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. Learned A.G.A. has then invited the attention of Court to the recital contained at page 49 of the paper book i.e. the statement of the prosecutrix before the doctor who medically examined her. On the basis of above, the learned A.G.A. contends that criminality committed by named/charge-sheeted accused is joint and common as such the same is incapable of being separated or segregated. As such no sympathy be shown by this Court in favour of the applicant. However, he could not dislodge the factual/legal submissions urged by learned counsel for applicant with reference to the record at this stage.
8. Having heard, the learned counsel for applicant, the learned A.G.A. for State,upon perusal of record, evidence, nature and gravity of offence, complicity of accused and accusation made coupled with the fact that co-accused has already enlarged on bail, there being no such distinguishing feature in the case of the present applicant to distinguish his case from bailed out co-accused, in such a manner so as to deny him bail, the clean antecedents of the applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted, as such the entire evidence sought to be relied upon by the prosecution against applicant, however, the learned A.G.A. with reference to the record could not point out any such circumstance necessitating the custodial arrest of applicant, the judgment of the Supreme Court in Sumit Subhaschandra Gangwal & Anr. Vs. The State of Maharastra & Anr. 2023 Live Law (SC) 373 (paragraph 5) but without making any comment on the merits of the case, applicant has made out a case for bail.
9. Accordingly, the bail application is allowed.
10. Let the applicant- Raju be released on bail in aforesaid case crime number 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 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.
11. 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."
9. Criminal Misc. Bail Application 13428 of 2023 (Saurabh Kumar Vs. State of U.P.) was allowed vide order dated 30.11.2023. For ready reference same is extracted hereinunder:-
"1. Heard Sri Aftab Alam, learned counsel for the applicant and Sri Kunwar Tejendra Bahadur, learned AGA for the State.
2. The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 121 of 2022, under Sections 376D, 344, 506, 120B IPC, Police Station Utraon, District Prayagraj during pendency of the trial.
3. FIR of the present case was lodged on 16.06.2022 against applicant and six others and two unknown persons and according to the FIR on 24.05.2022 the daughter of the informant had gone somewhere from her house and thereafter informant lodged a missing report and on 03.06.2022 when daughter of the informant was found near the railway station then she informed that applicant and co-accused Raju, Rambabu and Sonu committed rape upon her.
4. Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and after two weeks from the recovery of the victim, FIR of the present case was lodged and this inordinate delay in lodging the FIR shows that FIR is based on false facts.
5. He further submits that actually victim is a major girl and she had love affair with co-accused Raju, the uncle of the applicant and when this fact was revealed to the family members of the victim, then FIR of the present case was lodged and applicant being nephew of the co-accused Raju also made accused in the present matter.
6. He further submits that although victim in her both the statements recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. made allegation of rape against the applicant and co-accused Raju, Rambabu and Sonu but story narrated by her does not appear to be convincing and it appears that under the pressure of her parents she started making allegation of rape against applicant too.
7. He further submits that after considering the entire facts of the case bail application of co-accused Sonu and Raju have already been allowed by the co-ordinate Bench of this Court and their bail orders have been annexed along with instant bail application and case of applicant is at par with them. He further submits that applicant is not having any criminal history and in the present matter he is in jail since 19.10.2023.
8. Per contra, learned AGA opposed the prayer for bail but could not dispute the fact that victim is major girl and co-accused Sonu and Raju have already been released on bail by the co-ordinate Bench of this Court and case of applicant is at par with them.
9. I have heard learned counsel for the parties and perused the record of the case.
10. However, in the FIR as well as in both the statements of the victim recorded under Sections 161 Cr.P.C. and 164 Cr.P.C. there is allegation of rape against the applicant and three others but it appears that FIR of the present case was lodged after two weeks from the date of alleged recovery of the victim.
11. Further, admittedly victim is major girl however she made allegation of rape against applicant and three others in her both the statements but I find force in the argument advanced by learned counsel for the applicant that story narrated by her appears to be improbable.
12. Further, after considering the entire facts of the case, bail application of co-accused Sonu and Raju have already been allowed by the co-ordinate Bench of this Court and case of applicant is at par with them. Further, applicant is not having any criminal history and in the present matter he is in jail since 19.10.2023.
13. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.
14. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
15. Let the applicant - Saurabh Kumar be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence.
(iii) The applicant shall not indulge in any criminal and anti-social activity.
16. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.
17. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial."
10. Criminal Misc. Anticipatory Bail Application 12995 of 2023 (Dheerendra Vs. State of U.P. and another) was allowed vide order dated 04.12.2023. For ready reference same is extracted hereinunder:-
"1. Heard learned counsel for the applicant as well as the learned A.G.A. for the State and perused the record.
2. This application has been moved on behalf of the applicant- Dheerendra, seeking anticipatory bail in Case Crime No.121 of 2022, under Sections- 376D, 344, 506, 120B IPC, P.S.- Utraon, District- Prayagraj.
3. There are allegations against the applicant regarding commission of offences of gang rape, unlawful confinement, conspiracy and criminal intimidation of the victim.
4. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. He further submits that the applicant has not been assigned the role of commission of offence of gang rape of the victim. Allegations levelled against the applicant are false. It is further submitted that applicant has no criminal history to his credit. The investigation of the case is going-on and he is cooperating with the same and is entitled for anticipatory bail. It has been submitted that in case applicant is granted anticipatory bail, he will not misuse the liberty of bail and will co-operate in the investigation and would obey all conditions of bail.
5. Per contra, learned AGA has opposed the prayer of anticipatory bail application.
6. I have considered the rival submissions made by the learned counsel for the parties.
7. From the perusal of the record it reveals that F.I.R. was lodged on 16.06.2022 and investigation started, which is still going on and the applicant is co-operating with the same so far.
8. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.
9. In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.
10. Considering the settled principles of law regarding anticipatory bail, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till filing of police report under Section 173(2) CrPC before the Competent Court.
11. The application is allowed accordingly.
12. In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-
(i) The applicant shall make himself available for interrogation by a police officer as and when required.
(ii) 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 him/her from disclosing such facts to the Court or to any police office.
(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.
13. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant."
11. Criminal Misc. Bail Application 50119 of 2023 (Ajay Gupta Vs. State of U.P.) was allowed vide order dated 23.11.2023. For ready reference same is extracted hereinunder:-
"1. ??????? ??????? ???????? ????? ????????? ????, ????? ??? ?????? ?? ?? ?? ??????? 121/2022, ???????? ???? 376-??/ 344/506/ 120 ?? ?????????, ???? ????????, ???? ????????? ??? ????? ?? ????? ???? ???? ???????? ???? ??? ???
2. ????? ?? ??????? ????????, ??????? ?? ??????? ???????? ??? ??????? ??? ?????? ???????? ?? ???? ??? ???????? ?? ??????? ?????
3. ????? ?? ??????? ???????? ?? ???? ???????? ???? ?? ????? ?? ?? ?????? ??? ??? ??? ????? ??? ?? ???? ?????? ??? ??, ???? ???? ????? ????? ???? ???? ??, ??????? ?? ???? 164 ??.???.??. ?? ???? ??? ????? ?? ???? ?? ??? ?? ??? ???? ?? ???? ??? ?? ???? ??? ???? ??? ?? ??? ?? ????? ?? 5 ????? ??? ?? ??? ???? ?????? 23.05.2022 ?? ???? ?? ??? ???? ???? ??? ??? ??? ??? ??? ???? ????? ?? ??? ????, ???? ? ??????? ??? ?? ????? ???? ?? ????????? ??? ???? ? ???? ????? ??? ???? ???????? ???? ?? ?????? ?????? ?? ??? ?????? ??? ?? ??? ???? ???????? ???? ?? ?????? ?????? ?? ??? ?????? ??? ?? ??? ???? 10 ??? ?? ???? ??? ??? ???? ??? ?? 10 ????? ??? ???? ??? ????, ????, ??????? ? ???? ?????? ???????? ????? 11 ?? ??? ???? ????? ???? ?? ??? ?? ?? ?? ??? ? 5 ???? ??? ?????? ??????? ?????????, ??? ? ?? ??? ?? ????? ??? ??? ???? ????? ???? ???? ?????? ?????? ?? ???? ???? ???????, ????????? ? ??? ?? ???? ?? ?????????? ??? ??? ????" ???? ??? ?? ?? ?????? ?? ???? ?? ?? ??????? ???? ??? ????? ?? ??? ??????? ?????? ???? ??? ????? ?? ?????? ???? ??????? ?? ?????? ?? ?????? ?? ??? ???????? ????? ??????? ?? ??? ?? ?? ?????? ??? ??? 09.10.2023 ?? ??????? ??? ??????? ?? ????? ????? ?? ????? ?? ???? ???? ????
4. ??????? ?? ??????? ???????? ??? ??????? ??? ?????? ???????? ?? ????? ?? ??????? ???????? ?? ????? ?? ????? ????? ???? ??? ???? ???????? ???? ?? ????? ?????? ????? ????? ??????? ??? ??????? ??????? ?? ??, ????? ????? ?? ????? ?? ? ????? ?????
5. ????? ?? ??????? ???????? ?? ??? ?? ???????????? ??? ???????? ?? ?????? ?????? ?????? ??? ???????????? ?? ????? ??? ?? ?????? ???? ?? ???, ?????? ?? ??????? ?? ???? ?? ??? ?????????? ??????? ?? ?????????? ??? ?????? ??????? ?? ???????? ?? ??????? ? ???? ?? ???? ?? ????? ??? ???? ??? ??? ????? ?? ????? ?? ????? ???? ?? ??????? ???? ???
6. ??? ??? ?? ??? ??? ?? ???? ??? ??????? ??? ??? ????? ?? ??????? ?????? ????? ??? ??????? ???????? ?? ????????? ?? ????????? ???-???? ??? ???? ?????? ?? ?? ??????? ??????? ???????? ???? ?? ?????????? ?????? ?? ??? ????? ?? ???? ???? ????
1. ????? ??????? ?? ??????? ?? ????? ??????? ????????? ?? ??? ???????? ???? ??????
2. ????? ??????? ????????? ? ??????? / ??????????? ?? ??????? / ???????? ?????
3. ????? ???????? ?? ?????? ?? ???? ?????, ?? ??????? ?? ????? ???? ??? ???????? ????? ??? ???? ???? ?? ???????? ??? ??????? ???? ??? ??????? ??? ???????? ?? ????? ??????
4. ????? ????? ?? ???? ???? ?? ??? ????? ?? ?????????? ?? ???????? ??? ????? ?? ???? ?? ??????? ??????? ??? ????? ???? ???? ? ??? ??????? ????? ??????
5. ????? ????????? ?? ?????????? ??? ?? ????? ?? ?????? ?? ?????? ???? ?? ??????? ?? ????? ?????????? ?? ??? ??????? ?? ???? ???? ???? ? ?? ???? ??? ????? ?????, ????? ???? ?????? ???????? ??? ?????? ?? ????? ???? ?? ???? ???? ????
??????? ???? ??? ?? ???? ?? ??????? ?? ????? ???, ??????? ???????? ????? ?? ????? ?????????? ???? ???? ?? ???????? ???"
12. On the above premise, the learned counsel for applicant contends that the case of present applicant is similar and identical to aforementioned co-accused who have already been enlarged on bail. There is no such distinguishing feature on the basis of which the case of present applicant could be so distinguished from aforementioned bailed out co-accused so as to deny him bail. He therefore submits that in view of above and for the facts and reasons recorded in the bail orders of co-accused referred to above, applicant is also liable to be enlarged on bail on the ground of parity.
13. 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 28.09.2023. As such, he has undergone more than 2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he 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.
14. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, inasmuch as the first charge sheet was submitted on 21.08.2022 followed by the supplementary charge sheet dated 05.11.2023, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant in support of the present application for bail with reference to the record at this stage.
15. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused and accusations made coupled with the fact that the case of present applicant is similar and identical to aforementioned co-accused who have already been enlarged on bail, there is no such distinguishing feature on the basis of which the case of present applicant could be so distinguished from aforementioned bailed out co-accused so as to deny him bail, therefore, in view of above and for the facts and reasons recorded in the bail orders of aforementioned co-accused, applicant is also liable to be enlarged on bail on the ground of parity, inspite of the fact that the charge sheet has been submitted against applicant and therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, 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, 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 making any comment on the merits of the case, applicant has made out a case for bail.
17. Accordingly, the bail application is allowed.
18. Let the applicant- Umashankar, be released on bail in aforesaid case crime number 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 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.
19. 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 :- 15.12.2023 Imtiyaz