Anil Yadav v. State of U.P.). For ready reference same is reproduced herein under
Case Details
Neutral Citation No. - 2023:AHC:187992 Court No. - 65 Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 189 of 2023 Applicant :- Geeta Devi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Atul Kumar Yadav,Firdos Ahmad Counsel for Opposite Party :- G.A.,Brijesh Kumar Srivastava Hon'ble Rajeev Misra,J. 1. Heard Mr. Firdos Ahmad, the learned counsel for applicant, the learned A.G.A. for State and Mr. Brijesh Kumar Srivastava, the learned counsel representing accused/opposite party-2 2. Perused the record. 3. Supplementary affidavit filed by learned counsel for applicant in court today is taken on record.
Facts
4. This bail cancellation application has been filed by first informant-Geeta Devi seeking cancellation of bail granted to opposite party-2 Anil Yadav, vide order dated 02.11.2020 passed
Legal Reasoning
by this Court in Criminal Misc. Bail Application No. 23388 of 2020 (Anil Yadav Vs. State of U.P.). For ready reference same is reproduced herein under: "Heard Sri Janardan Yadav, learned counsel for the applicant, Sri Saroj Kumar Dubey, learned counsel for the informant as well as Sri Suraj Singh, learned AGA for the State and perused the material placed on record. This bail application has been moved seeking bail in Case Crime No.237 of 2019 under sections 147, 148, 149, 302, 120B, 34 I.P.C., Police Station Mehnagar, District Azamgarh, during the pendency of trial. As per FIR, which has been lodged by Smt. Geeta Devi, the prosecution case is that on 25.12.2019 at about 11.00 A.M. when her husband Awadhesh Yadav (deceased) was helping his neighbour Sher Bahadur Yadav in raising a wall, right then the applicant along with other co-accused named in the FIR and one unknown person came there and out of them, co-accused Satish Yadav @ Lalu and Kamlesh Yadav and an unknown person opened fire upon the deceased. This occurrence was witnessed by the daughters of the informant namely, Ranjana and Jyoti and two other persons of the Mohalla namely, Om Prakash Yadav and Ram Dular Yadav. In post- mortem report, the deceased is found to have sustained as many as ten fire arm injuries which consisted of eight entry wound and two exit wounds which were the cause of death. The contention of the learned counsel for the applicant is that the applicant is innocent. He has not been assigned any role of making fire upon the deceased and the same is assigned to other co-accused namely, Satish adav @ Lalu, Kamlesh Yadav and an unknown person. He has drawn attention to the statement of eye witnesses namely, Ram Dular, Om Prakash, Km. Ranjana and Jyoti. The witnesses Ram Dular and Om Prakash have repeated the same version as has been given in the FIR and have assigned the role of fire upon the deceased to co-accused Satish Yadav @ Lalu, Kamlesh Yadav and one unknown person. Similarly, the other witnesses namely, Jyoti and Ranjana have stated that co-accused Satish Yadav @ Lalu had made indiscriminate firing upon the deceased and co-accused Belas Yadav was assisting him in refilling the weapon and the accused- applicant and other co-accused Kamlesh Yadav were also present on the spot although general role has also been assigned to all of them. The applicant is not involved in any other criminal case. The applicant is absolutely innocent and is languishing in jail since 9.1.2020. In case the applicant is released on bail he will not misuse the liberty of bail. Learned A.G.A. as well as learned counsel for informant have vehemently opposed the prayer for grant of bail. Learned counsel for the informant has stated that though the role of firing upon the deceased is not assigned to the applicant but he was involved in hatching conspiracy of eliminating the deceased as he was the person who had brought the assailants on his motorcycle. Therefore, active role was assigned to him. It is further argued that this case would fall under section 120-B read with 302 IPC. In the light of the aforesaid arguments, looking to the fact that all the eye witnesses have assigned the role of making fire upon the deceased to co- accused Satish Yadav @ Lalu, Kamlesh Yadav and one unknown person, therefore this case is distinguishable from the case of co-accused Satish Yadav @ Lalu, Kamlesh Yadav and one unknown person, taking into consideration the nature of offence, quantum of punishment and period of detention in jail, without expressing any opinion on the merits of the case, it is found to be a fit case for bail. Let the applicant Anil Yadav involved in aforesaid case crime be released on bail 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 that :- 1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial. 2. The applicant shall cooperate in the trial sincerely without seeking any adjournment. 3. The applicant 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. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicant is placed before the Court, the same would be entertained. Order Date :- 2.11.2020 " 5. Learned counsel for applicant contends that one Ram Dular was an eye witness of the occurrence giving rise to present criminal proceeding in which accused/opposite party-2 has been enlarged on bail. However, subsequently aforementioned eye witness has been murdered on 22.02.2023. An F.I.R. dated 23.02.2023 was lodged and registered as Case Crime No. 24 of 2023 under Section 279. 304A, 427 I.P.C.. Copy of post mortem report of deceased Ram Dular Yadav has been brought on record as Annexure 5 to the affidavit filed in support of present application for cancellation of bail. 6. Learned counsel for applicant contends that accused/opposite party 2 has not been nominated as an accused in aforementioned F.I.R. but his complicity emerged subsequently. He therefore contends that since the accused/opposite party-2 has infringed condition no.3 of the conditions of bail, therefore his bail is liable to be cancelled. It is further submitted by learned counsel for applicant that accused/opposite party-2 has already been taken into custody and is undergoing incarceration in aforementioned case crime number. 7. Per contra the learned A.G.A. has opposed the present application. He submits that the F.I.R. referred to above is under Section 304A. As such the death of deceased is an accidental death. No charge sheet has been submitted against accused/opposite party-2 till date. On the above premise, it is thus urged that simply on the basis of aforementioned F.I.R. it cannot be inferred that the applicant has abused, abet or terrorised the witnesses. As such no indulgence be granted by this Court in favour of applicant. 8. In view of above and the fact that since accused/opposite party- 2 has already taken into custody and is undergoing incarceration, therefore, no useful purpose shall be served in cancelling the bail granted to accused/opposite party-2. 9. As a result, present bail cancellation application fails and is liable to be rejected. 10. It is accordingly rejected. 11 .It is however provided that court while considering the bail application of accused opposite party-2 in aforementioned case crime number shall also consider aforesaid aspect of the matter. Order Date :- 27.9.2023 YK Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad