Shambu Kumar v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52021 of 2023 Applicant :- Shambu Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Vinod Kumar Singh,Kuldeep Maurya Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Sita Ram Yadav, Advocate, holding brief of Mr.Vinod Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Shambu Kumar seeking his enlargement on bail in Case Crime No.231 of 2023, under Sections 452, 354, 506, 504, 376 I.P.C., Police Station-Lar, District-Deoria during the pendency of trial.

¶4Learned counsel for applicant submits that though applicant is a named and charge sheeted accused inasmuch as the charge sheet has been submitted against applicant on 21.09.2023 yet he is liable to be enlarged on bail. Admittedly, the prosecutrix is major. The civil dispute is going on between the parties which fact has been clearly stated in paragraph no.13 of the affidavit filed in support of the present application for bail. It is then contended that prosecutrix in her subsequent statement under Section 164 Cr.P.C. has departed from her previous statement under Section 161 Cr.P.C. No explanation has come forward by the prosecutrix herself regarding the same. On the above premise, he therefore, submits that when the statement of the prosecutrix under Sections 161/164 Cr.P.C. are taken together they are contradictory and therefore do not fall in the category of impeccable evidence.

¶5Even 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 15.09.2023. As such, he has undergone more than two 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, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of 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.

¶6Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶7Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of of record, evidence, complicity of applicant, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that prosecutrix is major, the civil dispute is going on between the parties which fact has been clearly stated in paragraph no.13 of the affidavit filed in support of the present application for bail, prosecutrix in her subsequent statement under Section 164 Cr.P.C. has departed from her previous statement under Section 161 Cr.P.C., no explanation has come forward by the prosecutrix herself regarding the same, as such, when the statements of the prosecutrix under Sections 161/164 Cr.P.C. are taken together they are contradictory and therefore do not fall in the category of impeccable evidence, the clean antecedents of applicant, the period of incarceration undergone, the police report under Section 173 (2) CrPC i.e. charge-sheet has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, the applicant has made out a case for bail.

¶8Accordingly, the bail application is allowed.

¶9Let the applicant-Shambu Kumar, 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.

¶10However, 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 :- 5.12.2023 Imtiyaz High Court of Judicature at Allahabad