Diwakar Yadav v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Court No. - 16 Case :- CRIMINAL APPEAL No. - 1162 of 2024 Appellant :- Diwakar Yadav Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Appellant :- Mahendra Pratap Verma Counsel for Respondent :- G.A. Hon'ble Shamim Ahmed,J.

¶1Case is taken up in the revise call.

¶2As per the office report dated 09.05.2024 notice has already been served upon the respondent No.2 but till date neither any counsel has appeared nor any counter affidavit has been filed on its behalf.

¶3Today when the case is taken up, there is no one present on behalf of respondent No.2 neither any counter affidavit has been filed, as such, it appears that respondent No.2 is not interested in contesting this case. Since the matter pertains to bail and learned counsel for the appellant presses urgency in the matter, therefore, this Court has no other option but to proceed for final arguments to decide the present appeal.

¶4Heard Sri Mahendra Pratap Verma, learned counsel for the appellant, Sri Bhaskar Mal, learned A.G.A. for the State and perused the entire record.

¶5This Criminal Appeal under Section 14-A (ii) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned bail rejection order dated

04.03.2024 passed by Special Judge, SC/ST Act, Ambedkar Nagar in Case Crime No.17/2024, under Sections 307, 323, 504, 506 and 120-B I.P.C. and Section 3(2) (V) of SC/ST Act, Police Station-Bewana, District-Ambedkar Nagar by which bail application No.308/2024 of the appellant has been rejected.

¶6Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case by the police only to show good work. No such incident, as alleged by the prosecution, took place. He further submits that the present F.I.R. was lodged on 10.02.2024 at about 13:00 hrs by a Sub Inspector, namely-Parasnath Yadav, respondent No.2 wherein the appellant was not named and it was mentioned that there were three unknown persons who were brutally beating a person who belongs to SC/ST category and the respondent No.2 only saw a video on whatsapp.

¶7Learned Counsel for the appellant further submits that even in the F.I.R. no specific role has been assigned to the appellant and the name of the appellant only surfaced after an information given by a local informant to the respondent No.2. He further submits that when the respondent No.2 did not find the real culprits, he has falsely implicated the present appellant alongwith other persons only to show good work of the police. He further submits that the appellant was not present at the spot of incident and he has no concern with the alleged incident.

¶8Learned Counsel for the appellant further submits that the name of the appellant has been taken with malafide intention to falsely implicate him in the present case. He further submits that there is no independent witness of the alleged incident nor any credible evidence is available against the appellant. He further submits that the victim has also not received any injuries due to alleged incident and the appellant was at his house at the time of alleged incident, thus, he submits that the appellant is an innocent person and has been falsely implicated by the police only to show good work.

¶9Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant 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. It has also been pointed out that the accused is not having any criminal history and he is in jail since

13.02.2024 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶10Learned A.G.A. opposed the prayer for bail, however, he is unable to dispute the contentions raised by learned counsel for the appellant.

¶11After 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, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that the present F.I.R. was lodged on 10.02.2024 at about 13:00 hrs by a Sub Inspector, namely-Parasnath Yadav, respondent No.2 wherein the appellant was not named and it was mentioned that there were three unknown persons who were brutally beating a person who belongs to SC/ST category and the respondent No.2 only saw a video on whatsapp; there also appears force in the argument of learned Counsel for the appellant that even in the F.I.R. no specific role has been assigned to the appellant and the name of the appellant only surfaced after an information given by a local informant to the respondent No.2; there also appears force in the argument of learned Counsel for the appellant that the victim has also not received any injuries due to alleged incident and the appellant was at his house at the time of alleged incident and the appellant is an innocent person and has been falsely implicated by the police only to show good work and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

¶12Accordingly, the appeal is allowed. Consequently, the impugned bail rejection order dated 04.03.2024 passed by Special Judge, SC/ST Act, Ambedkar Nagar in Case Crime No.17/2024, under Sections 307, 323, 504, 506 and 120-B I.P.C. and Section 3(2) (V) of SC/ST Act, Police Station-Bewana, District-Ambedkar Nagar is hereby set aside and reversed.

¶13Let the appellant, Diwakar Yadav be released on bail in the Case Crime No.17/2024, under Sections 307, 323, 504, 506 and 120-B I.P.C. and Section 3(2) (V) of SC/ST Act, Police Station-Bewana, District-Ambedkar Nagar with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter-33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) 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.

(iii) The appellant shall cooperate with investigation /trial.

(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 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 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 against him in accordance with law.

¶14It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

¶15The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment. Order Date :- 5.7.2024 Piyush/- High Court of Judicature at Allahabad, Lucknow Bench