Mahendra Yadav v. State of U.P

Reserved On:- 21.11.2023

Delivered On:- 24.11.2023 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48004 of 2023 Applicant :- Mahendra Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Sudhir Kumar Tripathi Counsel for Opposite Party :- G.A.,R P Rajan Hon'ble Siddharth, J.

¶1Heard Sri Sudhir Kumar Tripathi, learned counsel for the applicant; Sri R.P. Rajan, learned counsel for the informant and learned A.G.A for the State.

¶2There is allegation in the FIR that on 30/31.07.2023 brother of the informant aged about 25 years was sleeping besides the road on a cot when he was burned to death. The village pradhan, Lal Bachan, was trying to install the water tank on the land of her brother to which he was not agreeing, hence, he was burned to death.

¶3Learned counsel for the applicant submits that applicant was not named in the FIR. From the pointing out of co-accused, Yogendra Yadav, a danda was recovered. The implication of applicant is only on the basis of his confessional statement before the police. The informant was also not the eye-witness of the incident nor he had named the applicant. He has been implicated only on the basis of suspicion. Nothing incriminating was recovered from him. The applicant is in jail since 03.08.2023 and has no criminal history to his credit.

¶4Counsel for the informant has vehemently opposed the bail application. He has pointed out to the statements of witnesses recorded by the investigating officer and has stated that the applicant was having friendship with Yogendra Yadav son of Ramjit Yadav. Ramjit Yadav had an ill eye on the land of deceased, Surendra Yadav and Yogendra Yadav. The applicant has criminal history of 8 cases which has not been disclosed in the bail application. He has pointed out in the second statement of witnesses recorded by the investigating officer wherein they have stated that they have seen the incident. They have stated that the applicant hit the deceased on his head and Ramjit Yadav poured something and burned him.

¶5Learned counsel for the applicant has rejoined and has submitted that the second statements of the witnesses have been recorded after 27 days from their earlier statements and there is no explanation why they did not assigned specific role to the applicant earlier. He has submitted that it is a case of false implication of the applicant and motive has been assigned to named co-accused and not to the applicant in the FIR. In the supplementary affidavit filed by counsel for the applicant, he has explained criminal history of applicant which was not disclosed in the bail application.

¶6Learned A.G.A has also opposed the bail application.

¶7Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated

11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

¶8Let the applicant, Mahendra Yadav, involved in Case Crime No. 355 of 2023, under Sections-302, 201, 120-B, 34 IPC, Police Station-Chaurichaura, District-Gorakhpur, be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against his under Section 229-A of the Indian Penal Code.

(iv) 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.

(v) 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.

¶9In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

¶10Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Order Date :- 24.11.2023 Rohit High Court of Judicature at Allahabad