Tinku Gautam v. State of U.P. and Another

Court No. - 71 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11287 of 2023 Applicant :- Tinku Gautam Opposite Party :- State of U.P. and Another Counsel for Applicant :- Md. Nuruddin Khan,Md Zakir Husain Counsel for Opposite Party :- G.A. Hon'ble Shekhar Kumar Yadav,J.

¶1Heard learned counsel for the applicant and learned Additional Government Advocate for the State.

¶2This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.304 of 2023, under Sections 323, 504, 304 IPC, Police Station Line Bazar, District Jaunpur.

¶3Learned counsel for the applicant submits that applicant has been falsely implicated in the present case just to harass the applicant in fact no such incident has taken place as alleged in the impugned FIR. The applicant has never committed any offence as alleged in the impugned FIR. He further submits that the actual fact is that Sonu, Uma Shankar (informant) and Mukesh were working as labourer in brick-field and on 17.06.2023, a scuffle was taken place between them, as a result, Sonu fallen down on the bricks and subsequently became unconscious and during treatment he died. He further submits that initially the informant has lodged the NCR without mentioning the incident and thereafter lodged the impugned FIR after four days of the alleged incident against the applicant and other co-accused persons by adding Section 304 IPC leveling general allegations. No specific role has been assigned to the applicant. He further submits that it is a fault of prosecution side for which benefit is to be given to the applicant. Even while passing the rejection order, learned Magistrate has observed that there in no apprehension of arrest of the accused person, it is very surprising statement of the Magistrate concerned. He further submits that similarly placed co-accused persons, namely, Vinod Kumar Gautam, Pramod Kumar Gautam and Chandan Gautam have already been granted bail by the court below vide order dated

05.07.2023, copy of bail order has been annexed as Annexure No.5 to the affidavit. He further submits that the applicant is having no previous criminal history as has been mentioned in paragraph 16 of the affidavit. He further submits that applicant has apprehension of imminent arrest and in case, the applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial.

¶4Learned A.G.A. has vehemently opposed the prayer for anticipatory bail of the applicant but could not dispute the aforesaid contentions raised by learned counsel for the applicant.

¶5Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC

¶98The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

¶6In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant-Tinku Gautam, involved in the aforesaid case crime be released on anticipatory bail till conclusion of trial on furnishing a personal bond of Rs.50,000/-with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

(i) The applicant shall co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation.

(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 from disclosing such facts to the Court or to any police officer.

(iii) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

(iv) The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.

(v) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.

(vi) In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC

98.

(vii) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against his in accordance with law.

¶7In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

¶8With the aforesaid observations/ directions, the application is disposed of. Order Date :- 7.11.2023 Ajeet High Court of Judicature at Allahabad