Bharat v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40780 of 2023 Applicant :- Bharat Opposite Party :- State of U.P. Counsel for Applicant :- Munna Tiwari Counsel for Opposite Party :- G.A.,Ankit Srivastava Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Pulak Ganguly, Advocate holding brief of Sri Munna Tiwari, learned counsel for the applicant, Sri Ankit Srivastava, learned counsel for the first informant, Sri Bare Lal Bind, learned AGA for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Bharat, seeking enlargement on bail during trial in connection with Case Crime No. 522 of 2023, under Sections 147, 148, 149, 302/34, 506, 120B I.P.C. and Section 7 C.L.A. Act, registered at P.S. Hata, District Kushinagar.

¶4The F.I.R. of the present matter was lodged on 6.8.2023 by Radhakrishna Singh against the applicant, four other named persons and some unknown persons in which it is alleged that the accused persons in a pre-planned manner, lying in wait, on seeing Kamlesh Singh the younger son of the informant, Ishrawati Devi started exhorting and Dharmendra and Harendra armed with firearm, fired upon him. Subsequently to spread terror Sukdev, Bharat and Ishrawati Devi fired from their firearms.

¶5Learned counsel for the applicant argued that the role assigned to the applicant, Sukdev and Ishrawati Devi is of firing for spreading terror. It is argued that specific role of firing upon the deceased has been assigned to the co-accused Dharmendra and Harendra. It is argued that as such case of the applicant is distinguishable with that of the said two co-accused Dharmendra and Harendra who have been assigned the specific role of firing upon the deceased. It is argued that the applicant has no other criminal antecedents as stated in para-7 of the supplementary affidavit dated 27.9.2023 and is in jail since

10.8.2023.

¶6Per contra, learned State counsel and learned counsel for the first informant vehemently opposed the prayer for bail but could not dispute the arguments as aforesaid.

¶7After having heard learned counsels for the parties and perusing the record, it is evident that the role assigned to the applicant is of exhortation and firing in order to spread terror. Specific role of firing upon the deceased has been assigned to the co-accused Dharmendra and Harendra. Case of the applicant is distinguishable with that of the said two co-accused Dharmendra and Harendra.

¶8Looking to 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.

¶9Let the applicant-Bharat, 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.

¶10The 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.

¶11The bail application is allowed. (Samit Gopal,J.) Order Date :- 12.10.2023 Naresh High Court of Judicature at Allahabad