Nishu v. State of U.P

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33144 of 2023 Applicant :- Nishu Opposite Party :- State of U.P. Counsel for Applicant :- Shyam Lal,Abhilasha Singh,Ashutosh Yadav Counsel for Opposite Party :- G.A.,Sandeep Kumar Prajapati,Umesh Singh Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant and perused the record.

¶2This is the second bail application filed on behalf of accused/ applicant-Nishu. The first bail application was rejected by this Court vide order dated 08.02.2023 passed in Criminal Misc. Bail Application No. 2261 of 2023.

¶3Learned counsel for the applicant submits that first bail application of the applicant was rejected only on the ground that deceased had left a suicide note before her death in which she has categorically made allegation against the applicant for her committing suicide, but during trial when on 07.08.2023 an application was moved by the applicant before the court concerned for obtaining a copy of alleged suicide note of the deceased then it was reported that no such suicide note is available on the record. Learned counsel for the applicant further submits during trial husband of the deceased, namely, Mukesh who has been made prosecution witness as P.W.1 in his cross examination has stated that his wife was not literate and she was unable to write. A copy of application dated 07.08.2023 as well as cross examination of P.W.1 have been filed as Annexure Nos. S.A.1 & S.A.2 to the supplementary affidavit dated 18.10.2023, which is on the record. Learned counsel for the applicant argued that the alleged suicide note of the deceased upon which whole prosecution story was built up is not on the record and thus the whole prosecution story is false and fabricated and applicant has been made accused with malicious intention, therefore, there is bleak chance that prosecution may prove its case beyond reasonable doubt and the applicant may be convicted. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 27.08.2022, having no criminal history.

¶4Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence, but they have not disputed that the alleged suicide note upon which whole prosecution story was built up is not on the record.

¶5After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

¶6Let applicant-Nishu, involved in Case Crime No. 695 of 2022, under Section 306 I.P.C., Police Station Civil Lines, District Moradabad, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

(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.

¶7The 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 in accordance with law.

¶8The bail application is allowed. Order Date :- 15.12.2023 Mustaqeem. High Court of Judicature at Allahabad