Allahabad High Court
Shailesh vs State Of U.P. on 10 January, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38964 of 2022 Applicant :- Shailesh Opposite Party :- State of U.P. Counsel for Applicant :- Santosh Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Supplementary affidavit filed by the learned counsel for applicant in Court today is taken on record.
Heard Mr. Santosh Singh, the learned counsel for applicant and the learned A.G.A. for State.
This repeat application for bail has been filed by applicant-Shailesh seeking his enlargement on bail in Case Crime No. 311 of 2021 under Sections 147, 148, 302, 34, 120B, 216 IPC, Police Station Pilakhua, District Hapur during the pendency of trial i.e. Sessions Trial No. 41 of 2022 (State Vs. Govinda and Others) under Sections 147, 148, 302, 216, 120B IPC, Police Station Pilakhua, District Hapur.
Perused the record.
The first bail application of applicant was rejected by this Court by means of a detailed order dated 07.03.2022. For ready referrence, the same is extracted hereinunder:-
"Heard Mr. G.S. Chaturvedi, learned Senior Counsel assisted by Mr. Ravindra Pratap Singh and Mr. Santosh Singh, learned counsel for applicants- Shailesh and Kuldeep and Mr. Dinesh Kumar Maurya, learned counsel for applicants Teetu, Narvdev and Govinda, learned A.G.A. for State and Mr. Deepak Rana, learned counsel for first informant.
These applications for bail have been filed by applicants Shailesh, Kuldeep, Nardev, Teetu and Govinda seeking their enlargement on bail in Case Crime No. 311 of 2021, under sections 147, 148, 302, 34, 120B, 2016 IPC, Police Station- Pilakhua, District Hapur during pendency of trial.
Criminal Misc. Bail Application No. 43082 of 2021 (Shailesh Vs. State of U.P.) came up for orders on 7.2.2022 and this Court passed the following order:
"Heard Mr. G.S. Chaturvedi, learned Senior Counsel, assisted by Mr. R.P. Singh and Vishal Singh, learned counsel for applicant, learned A.G.A. for State and Mr. Deepak Rana, learned counsel for informant.
At the very outset, learned A.G.A. submits that following bail applications filed by co-accused are already pending before this Court.
(i) Criminal Misc. Bail Application No. 41407 of 2021 (Kuldeep Vs. State of U.P)
(ii) Criminal Misc. Bail Application No. 41358 of 2021 (Nardev Vs. State of U.P)
(iii) Criminal Misc. Bail Application No. 43268 of 2021 (Teetu Vs. State of U.P)
(iv) Criminal Misc. Bail Application No. 47549 of 2021 (Govinda Vs. State of U.P) In view of above, connect aforementioned criminal misc. bail applications along with this application for bail.
Matter shall reappear as fresh on 14.2.2022 along with connected matters. "
Pursuant to above order dated 7.2.2022, all the bail applications were connected and have been listed together. Since all the bail applications arise out of same case crime number, they have been heard together and are being disposed of finally by a common order.
Record shows that in respect of an incident which is alleged to have occurred on 27.6.2021, a prompt F.I.R. dated 27.6.2021 was lodged by first informant Satyapal Singh and was registered as Case Crime No. 311 of 2021, under sections 17, 148, 302, 34, 120B, 2016 IPC, Police Station- Pilakhua, District Hapur. In the aforesaid F.I.R. nine persons namely, Shailesh, Kuldeep, Govinda, Nardev, Nannu @ Munesh, Titu, Ankit, Vivek and Rohit have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. dated 27.6.2021 is that on 27.6.2021, named accused committed the murder of Brijendra Tomar, brother of first informant Satyapal Singh. In the aforesaid F.I.R, the role of strangulation has been assigned to named accused Shailesh and Kuldeep whereas rest of the named accused have been assigned the role of catching hold and are also alleged to have assaulted the deceased with danda, iron rod (sariya) and Iron Punch.
After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. Thereafter, the inquest of the body of deceased was conducted. In the opinion of panch witnesses, the nature of death of deceased was homicidal. Subsequent to above, the post-mortem of the body of deceased was conducted. In the opinion of autopsy surgeon the cause of death of deceased was asphyxia as a result of strangulation. Autopsy surgeon further found following ante-mortem injuries on the body of deceased:
(i) Multiple small abrasion over the left side of neck. Reddish black in colour wound (10x9) cm.
(ii) An abrasion @ surrounding contusion of reddish brown in contusion on anterior aspect of nect of size (8x6) cm.
(iii) A L/W of size (2 x 0.25) cm on the chin.
(iv) Multiple abrasions over the left arm laterally joint below shoulder jointly reddish black in colour spread over the (6x4) cm area
(v) A contusion of size (5x2) cm. on the sterna angle area of Rt. Sternum, reddish black in colour.
(vi) A contusion of size (3x4) cm on the right elbow posthole, reddish black in colour
(vii) A contusion of size (2x 1.5) cm on the left elbow pothole, reddish black in colour.
(viii) Multiple small abrasions over the left side of chest During course of investigation, Investigating Officer examined first informant Satyapal Singh and the witnesses named in the F.I.R. namely, Kumari Priti, Vikas Tomar and Kela Devi.
During course of investigation weapon used in the commission of crime was recovered on the pointing of three of the named accused namely, Govinda, Nardev and Titu. On the basis of the statements of witnesses examined under section 161 Cr.P.C. and other material collected during course of investigation, Investigating Officer came to the conclusion that complicity of four of the named accused namely, Nanu, Ankit, Vivek and Rohit in the crime in question is false. He, accordingly, opined to submit a charge sheet only against five of the named accused. Accordingly, Investigating Officer submitted charge sheet dated .7.9.2021 whereby five of the named accused i.e. Govinda Nardev and Titu have been charge sheeted under sections 147, 148, 302/34 IPC, Kuldeep has been charge sheeted under section 147, 148, 302/34 120 B IPC and Shailesh has been charge sheeted under sections 147, 148, 302, 120B, 2016 IPC. After submission of aforementioned charge sheet, cognizance was taken upon same by Court concerned. However, the Court is informed that the case has not yet been committed to the Court of Sessions.
MR. G.S. Chaturvedi, learned Senior Counsel for applicants Shailesh and Kuldeep contends that applicants are innocent. They have been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. are false and concocted. As such applicants are being falsely prosecuted in aforementioned case crime number.
It is then contended that the medical evidence does not support the prosecution story as unfolded in F.I.R. nor the ocular version of the occurrence in question as described in the statements of eye witnesses namely, Kumari Priti and Kela Devi supports the prosecution story as unfolded in F.I.R. Learned Senior Counsel has then drawn a parallel in between the allegations made in F.I.R. and the post mortem report of deceased. Referring to the ante-mortem injuries sustained by deceased, learned Senior Counsel submits that except for injury no.3, the deceased has not sustained any grievous injuries. According to the prosecution story as unfolded in F.I.R. the deceased is alleged to have been assaulted by nine named accused. He therefore, submits that the prosecution story as unfolded in F.I.R. is simply an exaggerated version of the occurrence giving rise to present criminal proceedings.
Learned Senior counsel has then invited attention of the Court to the statements of Kumari Priti, which is on record at page 10 of the paper book. Referring to the statement of aforesaid eye witness, learned Senior Counsel contends that this witness has given a completely new picture of the occurrence, which is alien to the prosecution story as unfolded in F.I.R.. He therefore submits that eye witness account of the occurrence is totally different to the prosecution story as unfolded in F.I.R. It is thus submitted that the prosecution itself is not clear and categorical about its own case.
Learned Senior Counsel next submits that role assigned to the named accused can not be bifurcated. The criminality alleged against named accused is common. He therefore contends that on the facts as noted above, applicants are liable to be enlarged on bail.
It is lastly contended that applicant Shailesh is in jail since 13.7.2021. As such, he has undergone more than 7 months of incarceration. Applicant Kuldeep is in jail since 9.7.2021. As such, he has undergone more than 7 months of incarceration. Applicant Teetu is in jail since 30.6.2021. As such, he has undergone more than 8 months of incarceration. Applicant Nardev is in jail since 30.6.2021. As such, he has undergone more than 8 months of incarceration. Applicant Govinda is in jail since 30.6.2021. As such, he has undergone more than 8 months of incarceration. Applicants have clean antecedents inasmuch as they have no criminal proceedings to their credit, except the present one. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with trial.
It is lastly contended that charge sheet has already been submitted. The evidence sought to be relied upon by prosecution against applicant already stands crystalized. As such, custodial arrest of applicant during the course of trial is not absolutely necessary. On the aforesaid premise, it is urged that applicants are liable to be enlarged on bail.
Mr. Dinesh Kumar Maurya, learned counsel for applicants Titu, Nardev and Govinds has adopted the arguments of learned Senior Counsel. However, he submits that applicant Govinda has criminal history of one case which has been durly explained in paragraph 26 of the bail application of applicant Govinda.
Per contra, the learned A.G.A. has opposed the prayer for bail. He contends that applicants are named and charge sheeted accused. As such they do not deserve any sympathy of this Court. It is then contended that the material on record clearly demonstrates that no exception can be carved out in the present case. The criminality alleged against applicants stands duly established on account of the submission of charge sheet dated 7.9.2021. In the present case a middle aged man has been put to death. Looking into the nature of the crime and the manner in which it was committed upon deceased does not give any room for grant of indulgence by this Court. The role of causing strangulation is assigned to two of the named accused namely Shailesh and Kuldeep, whereas other accused have been assigned the role of catching hold. As such, case of seven named accused stands on a different footing than the aforesaid two co-accused. Eye witnesses mentioned in the F.I.R were examined under section 161 Cr.P.C. by investigating Officer. However, they have not been nominated as prosecution witness in the charge sheet. Thus the prosecution itself is not relying upon the statement of the eye witnesses named in the F.I.R. As such reliance placed by learned Senior Counsel on the statements of the eye witnessed mentioned in the F.I.R. regarding the innocese of applicants is wholly misconceived. He, further submits that considering the totality of the facts and circumstances of the case as has emerged on the conspectus of the facts mentioned above, applicants are not liable to be enlarged on bail. Accordingly, the bail applicationsAbdul Rehman Antulay and Others Vs. R.S. Nayak and Another 1992 (1) SCC 225 of the applicants are liable to be rejected.
Mr. Deepak Rana, learned counsel for first informant has adopted the arguments of learned A.G.A.
Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of material brought on record as well as the complicity of applicants and accusation made but without making any comment on the merits of the case, I do not find any good ground to enlarge the applicants Sahilesh and Kuldeep on bail.
Accordingly, the bail applications of applicants Shailesh and Kuldeep are rejected.
However, applicants Titu, Nardev and Govinda have made out a case for bail as their role is distinguishable from co-accused Shailesh and Kuldeep. Accordingly, the bail applications of applicants Titu, Nardev and Govinda are allowed.
Let the applicants Titu, Nardev and Govinda, be released on bail in the aforesaid case crime number 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) 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 LAWAbdul Rehman Antulay and Others Vs. R.S. Nayak and Another 1992 (1) SCC 225.
(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/her 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 :- 7.3.2022"
Learned counsel for applicant submits that on date, applicant has undergone more than 1 year and 6 months of incarceration. Though the charge sheet has already been submitted but the trial has not yet commenced inasmuch as no charges have been framed by court below against charge sheeted accused including present applicant. Placing reliance upon the judgement of Supreme Court in Abdul Rehman Antulay and Others Vs. R.S. Nayak and Another 1992 (1) SCC 225, he submits that right to speedy trial is the fundamental right of an accused. Since there is delay in the conclusion of the trial which is not attributable to applicant, therefore, applicant is liable to be enlarged on bail. He further submits that looking into the period of incarceration undergone by applicant coupled with the fact that the trial is moving at snails pace, applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the present application for bail. He submits that second bail application of co-accused-Kuldeep has also been rejected by this Court vide order dated 27.09.2022. For ready reference, the same is reproduced hereinunder:-
"1. Heard Mr. Ramesh Chandra Yadav, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This is second bail application filed by applicant-Kuldeep seeking enlargement on bail in Case Crime No.311 of 2021, under sections147, 148, 302, 34, 120B I.P.C., Police Station- Pilkhauwa, District-Harpur, during pendency of trial.
4. The first bail application of applicant-Kuldeep was rejected by this Court by a detailed order dated 07.03.2022. For ready reference same is reproduced herein-under:-
"Heard Mr. G.S. Chaturvedi, learned Senior Counsel assisted by Mr. Ravindra Pratap Singh and Mr. Santosh Singh, learned counsel for applicants- Shailesh and Kuldeep and Mr. Dinesh Kumar Maurya, learned counsel for applicants Teetu, Narvdev and Govinda, learned A.G.A. for State and Mr. Deepak Rana, learned counsel for first informant.
These applications for bail have been filed by applicants Shailesh, Kuldeep, Nardev, Teetu and Govinda seeking their enlargement on bail in Case Crime No. 311 of 2021, under sections 147, 148, 302, 34, 120B, 2016 IPC, Police Station- Pilakhua, District Hapur during pendency of trial.
Criminal Misc. Bail Application No. 43082 of 2021 (Shailesh Vs. State of U.P.) came up for orders on 7.2.2022 and this Court passed the following order:
"Heard Mr. G.S. Chaturvedi, learned Senior Counsel, assisted by Mr. R.P. Singh and Vishal Singh, learned counsel for applicant, learned A.G.A. for State and Mr. Deepak Rana, learned counsel for informant.
At the very outset, learned A.G.A. submits that following bail applications filed by co-accused are already pending before this Court.
(i) Criminal Misc. Bail Application No. 41407 of 2021 (Kuldeep Vs. State of U.P)
(ii) Criminal Misc. Bail Application No. 41358 of 2021 (Nardev Vs. State of U.P)
(iii) Criminal Misc. Bail Application No. 43268 of 2021 (Teetu Vs. State of U.P)
(iv) Criminal Misc. Bail Application No. 47549 of 2021 (Govinda Vs. State of U.P) In view of above, connect aforementioned criminal misc. bail applications along with this application for bail.
Matter shall reappear as fresh on 14.2.2022 along with connected matters. "
Pursuant to above order dated 7.2.2022, all the bail applications were connected and have been listed together. Since all the bail applications arise out of same case crime number, they have been heard together and are being disposed of finally by a common order.
Record shows that in respect of an incident which is alleged to have occurred on 27.6.2021, a prompt F.I.R. dated 27.6.2021 was lodged by first informant Satyapal Singh and was registered as Case Crime No. 311 of 2021, under sections 17, 148, 302, 34, 120B, 2016 IPC, Police Station- Pilakhua, District Hapur. In the aforesaid F.I.R. nine persons namely, Shailesh, Kuldeep, Govinda, Nardev, Nannu @ Munesh, Titu, Ankit, Vivek and Rohit have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. dated 27.6.2021 is that on 27.6.2021, named accused committed the murder of Brijendra Tomar, brother of first informant Satyapal Singh. In the aforesaid F.I.R, the role of strangulation has been assigned to named accused Shailesh and Kuldeep whereas rest of the named accused have been assigned the role of catching hold and are also alleged to have assaulted the deceased with danda, iron rod (sariya) and Iron Punch.
After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. Thereafter, the inquest of the body of deceased was conducted. In the opinion of panch witnesses, the nature of death of deceased was homicidal. Subsequent to above, the post-mortem of the body of deceased was conducted. In the opinion of autopsy surgeon the cause of death of deceased was asphyxia as a result of strangulation. Autopsy surgeon further found following ante-mortem injuries on the body of deceased:
(i) Multiple small abrasion over the left side of neck. Reddish black in colour wound (10x9) cm.
(ii) An abrasion @ surrounding contusion of reddish brown in contusion on anterior aspect of nect of size (8x6) cm.
(iii) A L/W of size (2 x 0.25) cm on the chin.
(iv) Multiple abrasions over the left arm laterally joint below shoulder jointly reddish black in colour spread over the (6x4) cm area
(v) A contusion of size (5x2) cm. on the sterna angle area of Rt. Sternum, reddish black in colour.
(vi) A contusion of size (3x4) cm on the right elbow posthole, reddish black in colour
(vii) A contusion of size (2x 1.5) cm on the left elbow pothole, reddish black in colour.
(viii) Multiple small abrasions over the left side of chest During course of investigation, Investigating Officer examined first informant Satyapal Singh and the witnesses named in the F.I.R. namely, Kumari Priti, Vikas Tomar and Kela Devi.
During course of investigation weapon used in the commission of crime was recovered on the pointing of three of the named accused namely, Govinda, Nardev and Titu. On the basis of the statements of witnesses examined under section 161 Cr.P.C. and other material collected during course of investigation, Investigating Officer came to the conclusion that complicity of four of the named accused namely, Nanu, Ankit, Vivek and Rohit in the crime in question is false. He, accordingly, opined to submit a charge sheet only against five of the named accused. Accordingly, Investigating Officer submitted charge sheet dated .7.9.2021 whereby five of the named accused i.e. Govinda Nardev and Titu have been charge sheeted under sections 147, 148, 302/34 IPC, Kuldeep has been charge sheeted under section 147, 148, 302/34 120 B IPC and Shailesh has been charge sheeted under sections 147, 148, 302, 120B, 2016 IPC. After submission of aforementioned charge sheet, cognizance was taken upon same by Court concerned.
However, the Court is informed that the case has not yet been committed to the Court of Sessions.
MR. G.S. Chaturvedi, learned Senior Counsel for applicants Shailesh and Kuldeep contends that applicants are innocent. They have been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. are false and concocted. As such applicants are being falsely prosecuted in aforementioned case crime number.
It is then contended that the medical evidence does not support the prosecution story as unfolded in F.I.R. nor the ocular version of the occurrence in question as described in the statements of eye witnesses namely, Kumari Priti and Kela Devi supports the prosecution story as unfolded in F.I.R. Learned Senior Counsel has then drawn a parallel in between the allegations made in F.I.R. and the post mortem report of deceased. Referring to the ante-mortem injuries sustained by deceased, learned Senior Counsel submits that except for injury no.3, the deceased has not sustained any grievous injuries. According to the prosecution story as unfolded in F.I.R. the deceased is alleged to have been assaulted by nine named accused. He therefore, submits that the prosecution story as unfolded in F.I.R. is simply an exaggerated version of the occurrence giving rise to present criminal proceedings.
Learned Senior counsel has then invited attention of the Court to the statements of Kumari Priti, which is on record at page 10 of the paper book. Referring to the statement of aforesaid eye witness, learned Senior Counsel contends that this witness has given a completely new picture of the occurrence, which is alien to the prosecution story as unfolded in F.I.R.. He therefore submits that eye witness account of the occurrence is totally different to the prosecution story as unfolded in F.I.R. It is thus submitted that the prosecution itself is not clear and categorical about its own case.
Learned Senior Counsel next submits that role assigned to the named accused can not be bifurcated. The criminality alleged against named accused is common. He therefore contends that on the facts as noted above, applicants are liable to be enlarged on bail.
It is lastly contended that applicant Shailesh is in jail since 13.7.2021. As such, he has undergone more than 7 months of incarceration. Applicant Kuldeep is in jail since 9.7.2021. As such, he has undergone more than 7 months of incarceration. Applicant Teetu is in jail since 30.6.2021. As such, he has undergone more than 8 months of incarceration. Applicant Nardev is in jail since 30.6.2021. As such, he has undergone more than 8 months of incarceration. Applicant Govinda is in jail since 30.6.2021. As such, he has undergone more than 8 months of incarceration. Applicants have clean antecedents inasmuch as they have no criminal proceedings to their credit, except the present one. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with trial.
It is lastly contended that charge sheet has already been submitted. The evidence sought to be relied upon by prosecution against applicant already stands crystalized. As such, custodial arrest of applicant during the course of trial is not absolutely necessary. On the aforesaid premise, it is urged that applicants are liable to be enlarged on bail.
Mr. Dinesh Kumar Maurya, learned counsel for applicants Titu, Nardev and Govinds has adopted the arguments of learned Senior Counsel. However, he submits that applicant Govinda has criminal history of one case which has been durly explained in paragraph 26 of the bail application of applicant Govinda.
Per contra, the learned A.G.A. has opposed the prayer for bail. He contends that applicants are named and charge sheeted accused. As such they do not deserve any sympathy of this Court. It is then contended that the material on record clearly demonstrates that no exception can be carved out in the present case. The criminality alleged against applicants stands duly established on account of the submission of charge sheet dated 7.9.2021. In the present case a middle aged man has been put to death. Looking into the nature of the crime and the manner in which it was committed upon deceased does not give any room for grant of indulgence by this Court. The role of causing strangulation is assigned to two of the named accused namely Shailesh and Kuldeep, whereas other accused have been assigned the role of catching hold. As such, case of seven named accused stands on a different footing than the aforesaid two co-accused. Eye witnesses mentioned in the F.I.R were examined under section 161 Cr.P.C. by investigating Officer. However, they have not been nominated as prosecution witness in the charge sheet. Thus the prosecution itself is not relying upon the statement of the eye witnesses named in the F.I.R. As such reliance placed by learned Senior Counsel on the statements of the eye witnessed mentioned in the F.I.R. regarding the innocence of applicants is wholly misconceived. He, further submits that considering the totality of the facts and circumstances of the case as has emerged on the conspectus of the facts mentioned above, applicants are not liable to be enlarged on bail. Accordingly, the bail applications of the applicants are liable to be rejected.
Mr. Deepak Rana, learned counsel for first informant has adopted the arguments of learned A.G.A.
Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of material brought on record as well as the complicity of applicants and accusation made but without making any comment on the merits of the case, I do not find any good ground to enlarge the applicants Sahilesh and Kuldeep on bail.
Accordingly, the bail applications of applicants Shailesh and Kuldeep are rejected.
However, applicants Titu, Nardev and Govinda have made out a case for bail as their role is distinguishable from co-accused Shailesh and Kuldeep. Accordingly, the bail applications of applicants Titu, Nardev and Govinda are allowed.
Let the applicants Titu, Nardev and Govinda, be released on bail in the aforesaid case crime number 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) 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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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 :- 7.3.2022 "
5. Learned counsel for applicant contends that charge sheet was submitted on 07.09.2021. However, in spite of a the fact that a period of more than one year has rolled by from the date of submission of charge sheet, charges have not yet been framed against applicant. He therefore submits that proceedings of trial have remained stagnant even when there is no fault on the part of applicant. An accused has the right to speedy-trial. As aforesaid right of applicant has been ignored, applicant is liable to be enlarged on bail on account of lackadaisical approach of prosecution.
6. Per contra, the learned A.G.A. has opposed this application for bail. Learned A.G.A. submits that submission urged by learned counsel for applicant is regarding delay in trial proceedings. He then submits that on account of above, emedy of applicant is to file Criminal Misc. Application U/S 482 Cr.P.C. or Criminal Misc. Writ Petition seeking a direction to the court concerned to expedite the proceedings of trial pending before court below. On the aforesaid premise, learned A.G.A. contends that as no new or good ground is made out against applicant therefore no indulgence be granted by this Court in favour of applicant and the second bail applicant of applicant be rejected.
7. When confronted with above, learned counsel for applicant could not overcome the objection raised by learned A.G.A.
8. In view of above, second bail application of applicant fails and is liable to be rejected.
9. It is accordingly rejected.
Order Date :- 27.9.2022"
According to the learned A.G.A., case of present applicant is similar and identical to that of co-accused-Kuldeep. Since there is no distinguishing feature to distinguish the case of the present application with that of co-accused-Kuldeep, no exception can be drawn by this Court in the case of present applicant. Consequently, this repeat application for bail is also liable to be rejected.
When confronted with above, the learned counsel for applicant could not overcome the same.
Having heard, the learned counsel for applicant, learned A.G.A. for the state and upon perusal of record, this Court does not find any new or good ground to enlarge the applicant on bail.
The bail application fails and is liable to be rejected.
It is accordingly rejected.
Order Date :- 10.1.2023 Vinay