Nitish v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49888 of 2023 Applicant :- Nitish Opposite Party :- State of U.P. Counsel for Applicant :- Kali Charan Yadav Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri C.P. Upadhyay holding brief of Sri Kali Charan Yadav, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A-I 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-Nitish, seeking enlargement on bail during trial in connection with Case Crime No.156 of 2023 under Sections 306, 323, 504 IPC , registered at Police Station Gaur, District Basti.

¶4The FIR of the matter was lodged on 2.9.2023 by Mahatam Devi against the applicant and Ram Abhilash alleging therein that on 31.8.2023 her son Shravan Kumar went in a party at about 10 p.m. where the accused persons were present who due to old enmity abused him and assaulted him. The people present there intervened and separated them after which her son came back home. At about 12 hours in the night her son received a phone call on his mobile after which he went without information to anyone. On calling his mobile phone, he was unable to tell anything. At about 8 a.m. one person of the village informed that her son has committed suicide by hanging himself at a tree.

¶5Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that initially information was given by Mahatam Devi, the first informant to the police on the basis of which the inquest was conducted after which FIR was lodged. There is no eye-witness to the said incident. The name of the applicant has surfaced in the matter on account of suspicion. It is argued that there is no allegation that the deceased went with the applicant or on the call of the applicant. It is argued that there is no abetment and instigation of any kind by the applicant which has any nexus with the death of the deceased, the applicant has no mens-rea at all, there is no overt act whatsoever of the applicant, which resulted in the death of the deceased. The applicant has no motive at all to commit the aforesaid offence. It has also been pointed out that the applicant is not having any criminal history as stated in para 29 of the affidavit. The applicant is in jail since 3.9.2023.

¶6Per contra learned counsel for the State opposed the prayer for bail.

¶7After hearing the counsel for the parties and perusing the record, it is evident that there is no eye-witness to the incident. There is no allegation that the deceased went with the applicant or on the call of the applicant. There is no abetment and instigation of any kind by the applicant which has any nexus with the death of the deceased, the applicant has no mens-rea at all, there is no overt act whatsoever of the applicant, which resulted in the death of the deceased. The applicant has no motive at all to commit the aforesaid offence.

¶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-Nitish, 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 :- 22.11.2023 Gaurav Kuls High Court of Judicature at Allahabad