Alok Tiwari and another v. State of UP), vide order dated
Case Details
Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41225 of 2022
Legal Reasoning
Applicant :- Uday Narayan Tiwari @ Uday Tiwai Opposite Party :- State of U.P. Counsel for Applicant :- Sumitra Singh,Prakhar Saran Srivastava,Rajesh Kumar Singh,Shashi Bhushan Kunwar Counsel for Opposite Party :- G.A.,Manoj Yadav Hon'ble Vivek Kumar Birla,J. Heard Sri Prakhar Saran Srivastava, learned counsel for the applicant, learned AGA for the State and Sri Ajeet Kumar Singh, learned counsel holding brief of Sri Manoj Yadav, learned counsel for the informant and perused the record. The present bail application filed on behalf of the applicant Uday Narayan Tiwari @ Uday Tiwai seeking his bail in connection with Case Crime No. 019 of 2020, under Sections 302, 34 IPC, Police Station Pakari, District Ballia. At the very outset, learned counsel for the applicant submits that general role has been assigned to all the accused persons and all of them have been granted bail by this Court vide order dated 16.8.2022 passed in Criminal Misc. Bail Application No. 26087 of 2022 (Alok Tiwari and another vs. State of UP), vide order dated 16.9.2022 passed in Criminal Misc. Bail Application No. 40234 of 2022 (Ajay Tiwari vs. State of UP) and vide order dated 21.10.2022 passed in Criminal Misc. Bail Application No. 11159 of 2021 (Manish Tiwari and another vs. State of UP) and the applicant herein is claiming parity and therefore, the applicant herein is entitled to be enlarged on bail on the ground of parity. It is however submitted that the applicant is innocent with no previous criminal history and is in jail since 23.7.2020 and in case he is enlarged on bail, he will not misuse the liberty of bail. One of the order dated 21.10.2022 passed in Criminal Misc. Bail Application No. 11159 of 2021 (Manish Tiwari and another vs. State of UP) is quoted as under: "Leaned counsel for the applicant is permitted to add sections in the bail application during the course of the day. Heard learned counsel for the applicants, Sri Manoj Yadav, learned counsel for the informant; learned AGA for the State and perused the material placed on record. The instant bail application has been filed on behalf of the applicants, Manish Tiwari and Amit Tiwari, with a prayer to release their on bail in Case Crime No.19 of 2020, under Sections 147, 302/34, 324, 325, 323, 504, 506 I.P.C., Police Station Pakari, District Ballia, during pendency of trial. This is second bail application of the applicant. The first bail application of the applicant was rejected by co-ordinate Bench of this Court on 07.10.2020, which is not available. Learned counsel for the applicants has contended that the co-accuseds, Alok Tiwari and Abhai Tiwari, have been granted bail by this Court on 16.8.2022 in Criminal Misc. Bail Application No. 26087 of 2022. The case of the applicants stand on identical footing, hence the applicants are also entitled for bail on the ground of parity. The applicants are languishing in jail since 01.5.2020. Learned AGA and learned counsel for the informant have opposed the prayer for bail, but does not dispute the claim of parity. Having considered the submissions of the parties noted above, larger mandate of the Article 21 of the Constitution of India, Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, and without expressing any opinion on the merits of the case, let the applicants involved in the aforesaid crime be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :- (i) The applicants shall not tamper with the evidence or threaten the witnesses. (ii) The applicants shall file an undertaking to the effect that they 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. (iii) The applicants shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of their absence, without sufficient cause, the Trial Court may proceed against their under Section 229-A of the Indian Penal Code. (iv) In case the applicants misuse the liberty of bail during trial and in order to secure their presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against their in accordance with law under Section 174-A of the Indian Penal Code. (v) The applicants shall remain present in person 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 applicants are 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 their in accordance with law. 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 applicants and sureties be verified by the court concerned before the bonds are accepted." Learned AGA has opposed the prayer for grant of bail to the applicant. Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant Uday Narayan Tiwari @ Uday Tiwai, who is involved in aforementioned 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 subject to following conditions. Further, before issuing the release order, the sureties be verified. (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 IPC. (iii) IN CASE, THE APPLICANT MISUSE 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 FAIL 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 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 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. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. 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 :- 19.11.2022 Abhishek Digitally signed by ABHISHEK AGRAHARI Date: 2022.11.19 15:41:21 IST Reason: Location: High Court of Judicature at Allahabad