Harish v. State of U.P

Order Date :- 28.7.2023"

¶5Similarly, another co-accused Satish Kumar has already been enlarged on bail vide order dated 17.08.2023 passed in Criminal Misc. Bail Application No. 34677 of 2023 (Satish Kumar Vs. State of U.P.). For ready reference, the order dated 17.08.2023 is extracted hereinunder:- "1.

वररममनदमणणणकपककररजममनरपमररनमपतआववदकसरतशसवमम०अ०स०567/2022,

अनररर धमरम323, 325, 504, 506, 302,

कमममरककओर307, 34

भम०दद०वव०एवदधमरम

आरसरएकट,

रमनमवनरगहत,

जजलमशमहजहमदपमरममजममनरपरममककरनवहवरमपसरमर

वकयमरयमहह।

2.

पररवमदतकवववदमनअजधवकमदमरमवकमलरनमममदमजखलवकयमरयम,

इसवपतमवलतपररखम

जमय।

3.

आववदककवववदमनअजधवकम,

पररवमदतकवववदमनअजधवकमशतनतलमभशतवमसरवएवद

ववदमनअपरशमसककयअजधवकमकगसमनमररमपतमवलतकमपररशतलनवकयम।

4.

आववदककवववदमनअजधवकमनवरकरपसरमरवकयमवकआववदककगइसपकररममरलर

एवदफजरढदरसवझझठमफदसमयमरयमहह,

उसनवकजररअपरमधकमरररनहहवकयमहह।परम

सझचनमररपगटरववलदवबरहह,

जजसकमकगईसममवचरसपषतकररनहहवदयमरयमहह।कजररमममलव

ममआववदकककवववशषभझवमकमउलवजखरनहहहह,

अवपरमकववलसमममनयरगलउलवजखरवकयम

रयमहह।कजररघटनमकवपतयकदशरसमवकययकवबयमनसवकजररअपरमधकमरररकरनवमम

ममखयसहअवभयमकहरतशकगभझवमकमपररलवकरहगरहतहह।आववदककगरमदवककपमटरबदतकव

कमरररदजजशनइसमममलवममनमवमरवकयमरयमहह।उनकमयहभतकरनहहवकमममलवकव

सहअवभयमकममनतषककजममनर,

जममनरआववदनपतसद०29337/2023

ममइसनयमयमलय

कवअनयनयमयपतठकवआदवशवद०28.07.2023

कवदमरमसवतकमरककजमचमककहह।आववदक

वनदरषहहररमवहइसपकररममवद०22.11.2022

सवकमरमरमरममवनरदहह।इसजलए

आववदककगजममनरपरछगडवदयमजमय।

5.

पररवमदतकवववदमनअजधवकमएवदववदमनअपरशमसककयअजधवकमनवआववदककवजममनर

कमपबलववरगधकररवहहएरकरपसरमरवकयमवकआववदकदमरमकमरररअपरमधसदजवयएवद

रदभतरपककवरकमहह,

इसजलएआववदककगजममनरपरनछगडमजमय।

6.

आववदककवववदमनअजधवकमकवरकरदकवपररपवकयममपतमवलतपरउपलबधसमरवमनरथयय

एवदपररणसरवरययकमसमगरपसवअवलगकनकरनवकवबमद,

सबझरयककपककवरऔरवकसतभत

ठगसववरगधमतमकसममगतककअनमपणसरवरएवदउपलबधसममगतसवछवडछमडककसदभमवनमन

हगनवकवरथयकगदवखरवहहएमवरतरमयममआववदककगजममनरपरममककरनवकमउपयमकआधमर हह।

7.

अरतवमदकवरमर-

दगषपरवबनमकगईवटपपरतवकएहहएआववदककगउपरगकववरर अपरमध

ममसदबदजधरनयमयमलयककसदरमवषपरवयवकररबदध-

पतएवदअजधकधनरमवशकवदगसरमनतय

पवरभझपसरमरकरनवपरवनरनजलजखरशररदकवसमरजममनरपरछगडवदयमजमय।

1.

आववदकववववचनमयमपरतकरकवददरमनअवभयगजनसमकययकवसमरछवडछमडनहहकरवरम।

2.

आववदकअवभयगजनसमवकययवपतवडरम/

वशकमयरकरमरकगणरमयवरम/

धमकमयवरमनहह।

3.

आववदकनयमयमलयकवआदवशयकमपमलनकरवरम,

वहपरतकरकवददरमनवबनमकगई

अनमवशयकसररनजलएवनयरवरजरपरनयमयमलयममउपणसररहगरमररमपरतकरमम

ईममनदमरतसवसहयगरकरवरम।

4.

आववदकजममनरपरररहमहगनवकवबमदजममनरककसवरदतरमकमदमरपयगरनहतकरवरमऔर

वकसतभतअपरमजधकरवरववजधममजलपनहहहगरमनकगईअपरमजधकककतयकरवरम।

5.

आववदकपतयकयमअपतयकरपसवमममलवकवरथययसवपररवचरवकसतभतवयवकयम

पमजलसअजधकमररययकगकगईपलगभनयमधमककनहहदवरमनहतउनसवकगईवमयदमकरवरम,

जजसकवकमररउनहमनयमयमलयममरथययकगउजमररकरनवसवववरररहनमपडव।

उपरगकशररदममसववकसतकवउलदघनकवमममलवमम,

परतकरनयमयमलयआववदकककजममनर

वनयममनमसमररदकरनवकगसवरदतहह।"

¶6On the above premise, the learned counsel for applicant contends that the case of present applicants is similar and identical to aforementioned co-accused Munish and Satish Kumar, who have already been enlarged on bail. There is no such distinguishing feature on the basis of which, the case of present applicants could be so distinguished from aforementioned co-accused so as to deny him bail. He, therefore, submits that in view of above and for the facts and reasons recorded in the bail orders of aforementioned co-accused, applicant is also liable to be enlarged on bail on the ground of parity.

¶7Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 22.11.2022. As such, he has undergone more than 11 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶8Per contra, the learned A.G.A. and the learned counsel representing first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. and the learned counsel representing first informant could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶9Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that there are cross versions of the same occurrence, as such the occurrence is admitted to the parties, injuries have been sustained by various persons from both the sides, up to this stage, no such evidence has emerged on record on the basis of which the aggressor in the crime could be defined, the case of the present applicant is clearly distinguishable from named and charge sheeted accused Harishankar inasmuch as he is the author of the fatal gun-shot injuries sustained by the deceased, the case of present applicants is similar and identical to co-accused Munish and Satish Kumar, who have already been enlarged on bail, there is no such distinguishing feature on the basis of which, the case of present applicants could be so distinguished from aforementioned co-accused so as to deny him bail, the police report in terms of Section 173(2) has been submitted, yet in spite of above, the learned A.G.A. and the learned counsel representing first informant could not point out any such material from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

¶10Accordingly, the bail application is allowed.

¶11Let the applicant-Harish, be released on bail in the aforesaid case crime number on his 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.

¶12However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 2.11.2023 Vinay High Court of Judicature at Allahabad

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42663 of 2023 Applicant :- Harish Opposite Party :- State of U.P. Counsel for Applicant :- Radhey Shyam Shukla,Vipul Shukla Counsel for Opposite Party :- G.A.,Anirudh Sharma,Neelabh Srivastava Hon'ble Rajeev Misra,J. 1. Heard Mr. Radhey Shyam Shukla, the learned counsel for applicant, the learned A.G.A. for State and Mr. Neelabh Srivastava, the learned counsel representing first informant. 2. Perused the record. 3. This application for bail has been filed by applicant-Harish, seeking his enlargement on bail in Case Crime No. 567 of 2022, under Sections 323, 325, 504, 506, 302, 307, 34 IPC, Police Station-Nigohi, District-Shahjahanpur during the pendency of trial. 4. At the very outset, the learned counsel for applicant contends that co-accused Munish has already been enlarged on bail by this Court vide order dated 28.07.2023 passed in Criminal Misc. Bail Application No. 29337 of 2023 (Munish Vs. State of U.P.). For ready reference, the order dated 28.07.2023 is reproduced hereinunder:- "1. Heard Mr. Radhey Shyam Shukla, the learned counsel for applicant, the learned A.G.A. for State and Mr. Neelabh Srivastava, the learned counsel representing first informant. 2. Perused the record. 3. This application for bail has been filed by the applicant Furkan seeking his enlargement on bail in Case Crime No. 567 of 2022, under Sections 323, 325, 504, 506, 302, 307, 34 IPC, Police Station Nigohi, District Shahjahanpur during the pendency of the trial. 4. Record shows that in respect of an incident which is alleged to have occurred on 22.11.2022, a prompt F.I.R. dated 22.11.2022 was lodged by first informant Harishankar and was registered as Case Crime No. 567 of 2022, under Sections 147, 148, 149, 323, 504, 506, 302 IPC, Police Station Nigohi, District Shahjahanpur. In the aforesaid F.I.R. five persons namely (i) Mewaram, (ii) Harish, (iii) Munish, (iv) Satish and (v) Shivankal have been nominated as named accused. 5. As per the prosecution story as unfolded in the aforementioned F.I.R. one person namely Radheyshyam died whereas seven other persons sustained injury. The post-mortem report of the deceased Radheyshyam is on record at page 68 of the paper book whereas injury reports of the injured have been collectively brought on record as Annexure no. 5 to the affidavit filed in support of the present application for bail. 6. Record further shows that in respect of the same incident an application under Section 156(3) Cr.P.C. was filed by Shiv Kumar before the concerned Magistrate. The same was allowed. Resultantly, an F.I.R. dated 5.1.2023 came to be registered as Case Crime No. 0014 of 2023 under Section 147, 148, 149, 341, 323, 307 IPC, Police Station Nigohi, District Shahjahanpur. In the aforesaid F.I.R. as many as nine persons namely (i) Radheyshyam, (ii) Vipin @ Vikas, (iii) Mukesh, (iv) Sonpal, (v) Harishankar, (vi) Madhubala @ Bala, (vii) Smt. Suman, (viii) Shivam @ Shekhar, (ix) Pradeep have been nominated as named accused. 7. As per the prosecution story unfolded in the aforementioned F.I.R. four persons from the side of first informant sustained injuries. The medico- legal reports of the injured have been brought on record collectively as Annexure-16 to the affidavit filed in support of the bail application. 8. On the above premise, the learned counsel for applicant contends that since there are cross F.I.R.s regarding the same incident, therefore, the occurrence admitted to the parties. The primary question that is to be decided is as to who is the aggressor. From the material that has emerged on record up to this stage, there is nothing to indicate regarding the said issue. Even otherwise with reference to the F.I.R. giving rise to the present application for bail. he submits that deceased has died on account of gun- shot injuries sustained by her. The named accused Harishankar has been assigned the role of firing. Even on that ground also the case of the present app