Akesh Kumar @ Nanha v. State of U.P

Order Date :- 12.12.2022

(2) Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28828 of 2023 Applicant

:-

Mohit

Kumar

Opposite

Party

:-

State

of

U.P.

Counsel for Applicant :- Ganesh Shanker Srivastava,Vinod Kumar Maurya Counsel for Opposite Party :- G.A.,Ram M. Kaushik

........... Personal affidavit filed on behalf of Shri Deepak Bhuker, Deputy Commissioner of Police, Prayagraj is taken on record. By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No. 318 of 2022 at Police Station Cantt. District Prayagraj under Sections 147, 148, 149, 302, 323, 336, 506, 34 I.P.C. The applicant is in jail since 28.10.2022. The bail application of the applicant was rejected by learned trial court on

12.05.2023. The applicant along with others have been identified as the principal offender who assaulted the deceased as well as the injured with a common intent to commit the offence. There are eye-witnesses to the incident. The eye-witness as well as the postmortem report corroborate the prosecution case. The offence is grave. There is likelihood that the applicant had committed the offence. At this stage, no case for bail is made out. Without going into the merits of the case, the bail application is dismissed. Considering the gravity of the offence, interest of justice will be served by directing the learned trial court to expedite the trial within a stipulated period of time. The trial court is directed to conclude the trial within a period of one year from the date of receipt of a certified copy of this order. The learned trial court shall proceed with the hearing on a day to day basis to ensure that the above stipulated timeline of one year is strictly adhered to. All witnesses and counsels are directed to cooperate with the trial proceedings. The trial court has also to be conscious of the rights of the accused persons and is under obligation of law to ensure that all expeditious, necessary and coercive measures as per law are adopted to ensure the presence of witnesses. Counsels or parties who delay or impede the proceedings should not only be discouraged from doing so but in appropriate cases exemplary costs should also be imposed on such parties/ counsel. The learned trial court shall issue summons by regular process as per Section 62 Cr.P.C. and also by registered post as contemplated under Section 69 Cr.P.C. to expedite the trial. The learned trial court shall promptly take out all strict coercive measures against all the witnesses in accordance with law who fail to appear in the trial proceeding. Counsels or parties who delay or impede the proceedings should not only be discouraged from doing so but in appropriate cases exemplary costs should also be imposed on such parties/ counsel. The police authorities shall ensure that warrants or any coercive measures as per law taken out by the learned trial court to ensure that the attendance of

the

witnesses

are

promptly

executed.

The Deputy Commissioner of Police, Prayagraj shall file an affidavit before the trial court on the date fixed regarding status of execution of the warrants/service of summons taken out by the learned trial court. In case there is a failure on part of the police authorities to execute the warrants or other coercive measures, the Deputy Commissioner of Police, Prayagraj shall state the reasons for the same in the said affidavit and also show the steps taken to execute the warrants. The Deputy Commissioner of Police, Prayagraj shall simultaneously inform the Additional Director General of Police (ADG) Prayagraj Zone, about the aforesaid failure of the police authorities in the first instance to execute the warrants and coercive measures issued by the learned trial court. If required, the Additional Director General of Police (ADG) Prayagraj, may issue an appropriate directions to ensure that the warrants issued are promptly executed by the learned trial court. The delay in execution of warrants and consequent absence of witnesses is one of the principal causes of delays in criminal trials and has to be addressed effectively by all stakeholders. The trial judge shall submit a fortnightly report on the progress of trial and the steps taken to comply with this order to the learned District Judge. A copy of this order be communicated to the learned trial judge through the learned District Judge, Prayagraj by the Registrar (Compliance) by FAX. Order Date :- 19.7.2023

(3) Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20859 of 2023 Applicant

:-

Rahul

Kumar

Opposite

Party

:-

State

of

U.P.

Counsel for Applicant :- Ajay Kumar Giri,Surendra Kumar

Counsel for Opposite Party :- G.A.,Ram M. Kaushik

------------

¶1Heard Sri Ajay Kumar Giri, learned counsel for the applicant; Sri Mohd. Asif Advocate holding brief of Sri Ram M. Kaushik, learned counsel for the informant and Sri Jhamman Ram, learned AGA for the State-respondent.

¶2The instant application has been filed seeking release of the applicant on bail in Case Crime No. 0318 of 2022, under Sections 147, 148, 149, 302, 323, 336, 506, 34 IPC, Police Station Cantt, District Prayagraj, during pendency of the trial in the court below.

¶3FIR of the present case was lodged against the applicant and nine others and 2-3 unknown persons and according to the FIR applicant alongwith his associates made assault upon the son of the informant and his friend Aman through wooden sticks, bricks and stones and due to the assault made by them his son died and Aman sustained injuries.

¶4Learned counsel for the applicant submitted that the entire allegations made against the applicant are totally false and baseless and applicant did not participate in the alleged incident and on the basis of general and omnibus allegation applicant has been implicated in the present matter.

¶5He further submitted that from the perusal of the case diary it appears that injured Aman did not sustain any internal injury, therefore, his presence appears to be doubtful.

¶6He further submitted that co-accused Tushar whose name was disclosed by the injured has been released on bail by the co-ordinate Bench of this Court vide order dated 28.3.2023 passed in Crl. Misc. Bail Application No. 12244 of 2023 and from the statement of the injured Aman, the case of applicant is at par with him.

¶7He next submitted that although bail application of co-accused Prishu Kumar@Piku who was named in the FIR alongwith applicant has been dismissed by co-ordinate Bench of this Court vide order dated 12.12.2022 passed by Crl. Misc. Bail Application No. 55316 of 2022 but as there can no parity of rejection of bail order, therefore, considering the fact that co-accused Tushar has already been released on bail, applicant may also be released on bail.

¶8He further submitted that applicant is having no criminal history and he is in jail in the present matter since 28.10.2022, therefore, he may be released on bail.

¶9Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submitted that as many as ten persons made assault upon two persons and in the assault, one person died and one sustained injuries and apart from the injured witnesses, there are several eye witness and all stated that applicant also participated in the incident and further bail application of co-accused Prishu Kumar @ Piku has already been dismissed by this Court.

¶10Learned counsel appearing on behalf of the informant further submitted that as co-accused Tushar was not named in the FIR, therefore, case of applicant is distinguishable from him.

¶11I have heard learned counsel for the parties and perused the record of the case.

¶12It is a case in which as many as 12 persons made assault upon the deceased and injured Aman through wooden sticks, bricks and stones and due to the assault made by them, one person died and one sustained injury.

¶13From perusal of the post mortem report of the deceased, it appears that he sustained as many as 9 injuries and injured & other eye witnesses in their statements recorded under section 161 Cr.P.C. stated against the applicant.

¶14Although bail application of the co-accused Tushar has been allowed by co-ordinate Bench of this Court but from the perusal of the bail granting order dated 28.3.2023, it appears that one of the grounds to grant bail was that he was not named in the FIR. As applicant is named in the FIR, therefore, case of applicant is distinguishable from the case of co-accused Tushar.

¶15Further bail application of Prishu Kumar @ Piku has been dismissed by co-ordinate Bench of this Court vide order dated 12.12.2022 passed in Crl. Misc. Bail Application No. 55316 of 2022 and he was also named in the FIR alongwith applicant.

¶16Therefore, considering the facts and circumstances of the case, discussed above, in my view, applicant is not entitled to be released on bail.

¶17Accordingly, the instant bail application stands rejected.

¶18It 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. Order Date :-17.7.2023 It is further submitted that criminality committed by applicants and co-accused is joint and common. Therefore same is incapable of separation or saggregation. Therefore, no exception can be carved out in the case of applicants. As such, applicants do not deserve any sympathy by this court. Having heard the learned counsel for applicants, the learned A.G.A. for State and the learned counsel for first informant, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicants, accusation made coupled with the fact, that one of the charge sheeted accused has been enlarged on bail by this Court, the case of present applicants is similar and identical to bailed out named and charge-sheeted co-accused inasmuch as no motive has been assigned to present applicants, the complicity of applicants has emerged in the crime in question after the scuffle has taken place, learned A.G.A. and learned counsel for first informant could not point out any such distinguishing feature so as to distinguish the case of present applicants from that of bailed out co-accused, no recovery has been made from applicants, clean antecedents of applicants, the police report in terms of section 173 (2) Cr.P.C has already been submitted and therefore the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized, yet inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicants during the pendency of trial, up to this stage, four prosecutions witness of fact i.e. first informant, the injured, independent eye witness and chance witness i.e. P.W.1, P.W.2, P.W.3 and P.W. 4, have been examined but they have not supported the F.I.R., therefore irrespective of the objections raised by the learned A.G.A. and the learned counsel for first informant in opposition to the present applications for bail, but without making any comment on the merits of the case, the applicants have made out a case for bail. Accordingly the bail applications are allowed. Let the applicants Vivek Kumar and Akesh Kumar @ Nanha 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 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 :- 17.10.2023 Arshad High Court of Judicature at Allahabad

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29534 of 2023 Applicant :- Akesh Kumar @ Nanha Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Kumar Giri,Dharmendra Pratap Singh,Surendra Kumar Counsel for Opposite Party :- G.A.,Ram M. Kaushik Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31582 of 2023 Applicant :- Vivek Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Nafees Ahmad,Om Prakash Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. Om Prakash Mishra along with Mr. Nafees Ahmad, learned counsel for applicant- Vivek Kumar, Mr. Deep Singh, Advocate, holding brief of Mr. Dharmendra Pratap Singh, the learned counsel for applicant- Akesh Kumar @ Nanha, the learned A.G.A. for State and Mr. Abhishek Ghosh holding brief of Mr. Ram M. Kaushik, the learned counsel representing first informant. Perused the record. These applications for bail have been filed by applicants - Vivek Kumar and Akesh Kumar @ Nanha, seeking their enlargement on bail in Case Crime No. 0318 of 2022, under Sections 147, 148, 149, 302, 323, 336, 506, 34 IPC, Police Station- Cantt, District- Prayagraj, during the pendency of trial. Record shows that in respect of an incident which is alleged to have occurred on 25.10.2022, a belated F.I.R. dated 26.10.2022 was lodged by first informant Ayodhya Prasad Yadav and was registered as Case Crime No. 0318 of 2022, under Sections 147, 148, 149, 302, 323, 336, 506, 34 IPC, Police Station- Cantt, District- Prayagraj. In the aforesaid F.I.R. ten persons namely, Nanha, Mohit, Rahul, Pinku, Sitish, Rishabh, Ashu, Vishal, Vivek and Umesh have been nominated as named accused, whereas two to three unknown person have also been arraigned as accused. In the occurrence giving rise to present criminal proceedings, one person namely, Ankit Kumar died whereas one person Aman Kumavni sustained injuries. In the opinion of autopsy surgeon, who conducted autopsy of the body of deceased cause of death of deceased was coma as a result of head injuries. The autopsy surgeon found following ante-mortem injuries on the body of deceased: (i) L/w 5 x 1 CM Rt. Skull temporal and parietal regions 6 cm above Rt. ear (ii)L/W 6 x 2 cm Rt. side skull 1 cm above Rt. ear, bone deep... (iii)L/W 2 x 1 cm on mid chin (iv) Abrasion 5 x 3 cm Rt. Elbow joint (v) Abrasion 8 x 3 cm Rt. side of Chest (vi) Abrasion 2 X 1 cm on Rt. iliac spine (lateral part) (vii) Abrasion 8 X 1 cm on Rt. knee (viii) Abrasion 10 x 3 cm on left knee (ix) Abrasion 3 x 1 cm on left ankle joint According to learned A.G.A. as per medico legal report of the injured, Aman Kumavni, he sustained following injuries: (i) Lacerated wound 4 x 2 cm size on Lt side of forehead 2 cm above Lt eyebrow (ii) Contusion... in colour of size 6 cm x 4 cm below and behind right ear (iii) Abrassion of 2 cm size on right chick 6 cm below right eye (iv) Contusion 4 x.... size on left chick, 3 cm below left eye (v) Contusion 11 cm x.. cm size on right shoulder (vi) Multiple contusion on right upper limb in 30 x 4 cm size. (vii) Contusion on right side of back 8 x 2 cm with abrassion of 7 x 0.5 cm. (viii) Multiple contusion marks on upper back in area of 30 x 20 cm size (x) Contuse swelling of 4 x 2 cm size on ocipital region of head. After completion of statutory investigation in terms of Chapter XII Cr.P.C. Investigating Officer submitted charge sheet dated 13.11.2022, whereby following persons namely, Ayodhya Prasad Yadav, Govind Lal, Aman Kumavni, Abib Kumavni, Aman Tiwari, Sanjay Giri, laki, Dipesh Agarwal, Surendra Pratap, Sarvesh Sakya, Chandra Rai, Sudha Tiwari, Sharda Prasad, Kaleem Akmal, Santosh, Shailesh, Anjali Singh, Ravi Kant, Rukumpal Singh have been charge sheeted under sections 147, 148, 149, 302, 323, 336, 506, 34 IPC. At the very outset, learned counsel for applicants contends that named/charge-sheeted accused Tushar Bhartiya @ Anshu has already been enlarged on bail by this Court vide order dated 28.3.2023