High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27770 of 2022 Applicant :- Himanshu Opposite Party :- State of U.P. Counsel for Applicant :- Ashok Kumar Singh Bais Counsel for Opposite Party :- G.A.,Anil Kumar Mishra Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Nirmal Singh, Advocate, holding brief of Mr. Ashok Kumar Singh Bais, the learned counsel for applicant, the learned A.G.A. for State and Mr. Anil Kumar Mishra, the learned counsel for first informant. This application for bail has been filed by applicant Himanshu seeking his enlargement on bail in Case Crime No. 122 of 2022, under Sections 302, 120-B-34 IPC, P.S. Rampur Maniharan, District Saharanpur, during the pendency of trial. Perused the record. Record shows that in respect of an incident, which is alleged to have occurred on 13.4.2022, a prompt F.I.R. dated 13.4.2022 was lodged by first informant Devendra Kumar and was registered as Case Crime No. 122 of 2022, under Sections 302, 120-B-34 IPC, P.S. Rampur Maniharan, District Saharanpur. In the aforesaid F.I.R., an unknown person has been arraigned as an accused. As per the prosecution story as unfolded in the F.I.R., it is alleged that an unknown person caused the murder of nephew of first informant by firing on his neck on right side. After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. The inquest (panchayatnama) of the body of the deceased was conducted on same day i.e. 13.4.2022. In the opinion of panch witnesses, the nature of death of deceased was characterized as homicidal. Thereafter, the post mortem of the body of the deceased was conducted.. The Autopsy Surgeon found following ante mortem injuries on the body of the deceased:- (i). L.W. 7 cm x 6 cm present on rt side of neck 2 cm, above rt. clavicle and 4 cm below rt angle of mandible (ii) C-laceration 2 cm rt scapular bone fracture present. In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante mortem fire arm injury. During course of investigation, Investigating Officer examined first informant and three other witnesses namely Deo @ Deoraj, Hemant and Arpit Kumar. Aforesaid witnesses in their statements under Section 161 Cr. P. recorded before the Investigating Officer have not only detailed the manner of occurrence, but have also disclosed the names of the accused involved in the crime in question. As per the disclosure made by aforesaid witnesses the role of causing the fatal injury on the body of the deceased has been assigned to Vaibhav, whereas other co-accused namely Himanshu and Lakshya were assigned the role of catching hold. After completion of investigation of aforementioned case crime number, Investigating Officer on the basis of above and other material gathered by him during the course of investigation, which prima facie is adverse to applicant and other accused opined to submit charge sheet. Accordingly, Investigating Officer submitted the charge sheet dated 9.6.2022, whereby Lakshya, Vaibhav and Himanshu have been charge sheeted under Sections 302, 120B-34 IPC. Learned counsel for applicant contends that applicant is innocent. He is not named in the F.I.R. It is next contended that as per the material on record, applicant along with co-accused Lakshya has been assigned the role of catching hold. The author of the fatal gun shot injury leading to the death of Vansh is co- accused Vaibhav. As such, case of present applicant is different from that of co-accused Vaibhav. It is then submitted that applicant is a young boy aged about 19 years and a student of B.Sc. part I. Learned counsel for applicant lastly submits that 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 15.4.2022, as such he has undergone 7 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. and Mr. Anil Kumar Mishra, the learned counsel for first informant have opposed this application for bail. They jointly submit that applicant is a charge sheeted accused. As such, he does not deserve any indulgence by this Court. Having heard the learned counsel for applicant, the learned A.G.A. for state, the learned counsel for first informant, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made,coupled with the fact that applicant has been assigned role of catching hold, therefore his case is distinguishable from co- accused Vaibhav but without expressing any opinion on the merits of the case, applicant has made out a case for bail. Accordingly, bail application is allowed. Let the applicant Himanshu involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.. (iii) 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. (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 him 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. However, 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 :- 17.11.2022 HSM Digitally signed by HARI SHANKER MISHRA Date: 2022.11.19 15:52:24 IST Reason: Location: High Court of Judicature at Allahabad