Rohit Kumar Gautam v. State of U.P

Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30939 of 2023 Applicant :- Rohit Kumar Gautam Opposite Party :- State of U.P. Counsel for Applicant :- Kuldeep Johri Counsel for Opposite Party :- G.A. Hon'ble Mrs. Renu Agarwal,J.

¶1Rejoinder affidavit filed in the Court today is taken on record.

¶2Heard learned counsel for the applicant, learned A.G.A. and perused the record.

¶3The present first bail application has been filed on behalf of the applicant in Case Crime No. 156 of 2023, under Sections 8,20,25,29,60 of N.D.P.S. Act and section 3/25 Arms Act, Police Station Bichwa, District Mainpuri with the prayer to enlarge him on bail.

¶4Learned counsel for the accused-applicant submitted that the applicant is innocent and has been falsely implicated in the instant case due to malafide intentions. As per FIR, 47 Kg. 400 gms. Ganja (38 kg. 400 gms in 36 closed packets and rest 9 kg open) has been recovered from the joint possession of two persons, including applicant. There is no independent witness of the alleged recovery. Recovery of country made pistol was shown recovered from the possession of co-accused Ravi Kumar. It is next contended that similarly situated co-accused Ravi Kumar has already been enlarged on bail by another Bench of this Court, vide order dated 14.9.2023, passed in Criminal Misc. Bail Application No. 33750 of 2023, copy whereof has been filed as Annexure-RA1 to the rejoinder affidavit. The applicant is languishing in jail since

23.3.2023, having no criminal history. It is lastly submitted that since the role of the present applicant is identical to that of co-accused, who has already been enlarged on bail, present applicant is also entitled to be enlarged on bail on the ground of parity and if he is granted the liberty of bail he will not misuse the same and he is ready to furnish his sufficient sureties, bonds and personal bonds.

¶5On the other hand, learned AGA has vehemently opposed the prayer for bail but could not controvert the fact that identically situated co-accused has been enlarged on bail.

¶6Considering the fact that alleged contraband was recovered from the joint possession of the applicant and other co-accused, there was no public witness of the alleged recovery, identically situated co-accused has been enlarged on bail and without expressing any opinion on the merits of the case, accused-applicant is liable to be released on bail.

¶7Let applicant Rohit Kumar Gautam be released on bail in the above case crime number and on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) 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.

(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 of the Indian Penal Code.

(iii) 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. is issued and the 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 of the Indian Penal Code.

(iv) 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.

(v) The applicant shall also furnish an undertaking from the sureties that the properties (movable/immovable) which are the basis of accepting the surety, shall not be disposed of by them till the conclusion of trial.

(vi) The applicant shall also give an undertaking to the effect that he will not change his address without prior intimation to the trial court concerned. (Renu Agarwal,J.) Order Date :- 16.10.2023 Faridul High Court of Judicature at Allahabad