Visheshan @ Golu v. State of U.P. and Another

Court No. - 85 Case :- CRIMINAL APPEAL No. - 8313 of 2023 Appellant :- Visheshan @ Golu Respondent :- State of U.P. and Another Counsel for Appellant :- Kamlesh Kumar Tiwari,Om Prakash Singh Counsel for Respondent :- G.A. Hon'ble Mayank Kumar Jain,J. Compliance affidavit filed today by Learned A.G.A is taken on record. Heard learned counsel for the appellant, learned AGA for opposite party no.1 and perused the material placed on record. The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated

14.07.2023 whereby the Additional Session Judge/Special Judge, SC/ST Act, Gorakhpur in Session Trial No. 922 of 2023, arising out of case crime no. 53 of 2023, under Section 302, 120B of IPC and under Section 3(2)5 of SC/ST Act, Police Station Badaharganj, District Gorakhpur. As per the F.I.R, brother of the informant namely Girijesh aged 35 years was a mason. On 03.02.2023 at around 8:30 a.m, he left his house for his work. In the evening he informed his wife Anita that he is going to attend a party by did not return during the entire night. On next day his body was found. Learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. Appellant is not named in the F.I.R. The name of the appellant was disclosed by co-accused Amarjeet when recovery of a knife on his pointing was made. It is also submitted that no motive has been assigned to the appellant to commit murder of Girijesh. The motive is attributed to co-accused Amarjeet who has suspicion that his wife Babita is having illicit relationship with the deceased. It is also submitted that the witnesses Jitendra and Ram Prasad also did not disclose the name of the appellant. Further, it is submitted that no recovery has been made on the pointing out of the appellant. Appellant is having criminal history of one case in case crime no. 605 of 2023 under Section 3(1) U.P.Gangster Act registered against him after this case. Appellant is languishing in jail since 08.02.2023. In case, the appellant is released on bail, he will not misuse the liberty of bail. Per contra, learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid factual aspects of the matter. It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has not properly considered the case of the appellant. Hence, in view of above consideration, the impugned order of rejection of bail passed by the trial court is, hereby, set aside. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, Court is of the opinion that the appellant is entitled to be enlarged on bail. Let appellant, Visheshan @ Golu be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The appellant 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 or tamper with the evidence.

(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.

(iii) The appellant 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 of Cr.P.C.

(iv) The appellant 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 the trial court.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the appellant 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the appellant, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The criminal appeal is allowed. Order Date :- 4.12.2023 PS High Court of Judicature at Allahabad