Male Rai v. State of UP) and vide order dated
Case Details
Court No. - 42 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46278 of 2022 Applicant :- Jokhan Rai Alias Akhilesh Rai Opposite Party :- State of U.P. Counsel for Applicant :- Prakash Chandra Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vivek Kumar Birla,J.
Legal Reasoning
Heard Sri Anand Prakash Singh, learned counsel holding brief of Sri Prakash Chandra Srivastava., learned counsel for the applicant, learned AGA for the State and perused the record. The present bail application filed on behalf of the applicant Jokhan Rai Alias Akhilesh Rai seeking his bail in connection with Case Crime No. 216 of 2021, under Sections 302/34 IPC, Police Station Bakhira, District Sant Kabir Nagar. At the very outset, learned counsel for the applicant is claiming parity on the ground that the accused persons has already been granted bail by this Court vide order dated 28.11.2022 passed in Criminal Misc. Bail Application No. 6174 of 2022 (Satya Prakash Rai @ Male Rai vs. State of UP) and vide order dated 3.12.2022 passed in Criminal Misc. Bail Application No. 53123 of 2022 (Sonu Rai @ Deepak Rai vs. State of UP) 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 2.9.2022 and in case he is enlarged on bail, he will not misuse the liberty of bail. One of the orders dated 3.12.2022 passed in Criminal Misc. Bail Application No. 53123 of 2022 (Sonu Rai @ Deepak Rai vs. State of UP) is quoted as under: "Heard Sri V.P. Srivastava, learned Senior Counsel for the applicant, learned A.G.A. and perused the record. The bail application under Section 439 Cr.P.C. has been moved by the applicant - Sonu Rai @ Deepak Rai to enlarge him on bail in Case Crime No. 216 of 2021 under Sections 302 and 34 I.P.C. Police Station Bakhira, District Sant Kabir Nagar. It is submitted by the learned counsel for the applicant that the co-accused Satya Prakash Rai @ Male Rai having identical role in the incident has been granted bail by this court. Thus, the present applicant, who is languishing in jail since 11.10.2022, is also entitled for bail. Learned A.G.A. has opposed the bail application but he could not deny the fact that co-accused Satya Prakash Rai @ Male Rai and Satyendra Rai having identical role in the incident have been granted bail. Further, it is argued that the present applicant is having criminal history of three cases. Learned counsel for the applicant submitted that he had knowledge of criminal history of two cases, which he has explained in paragraph-17 of the affidavit appended with the bail application and in both these cases he is on bail. From perusal of the record, it is found that in the FIR all the four accused persons including the present applicant are assigned general role of committing murder of Laxman Pandey. As per the statement of first informant also, the role assigned to the present applicant is of exhortation. The case of the present applicant is distinguishable from the co-accused, who is said to have assaulted the deceased with Bhujali. Co-accused Satya Prakash Rai @ Male Rai and Satyendra Rai having identical role in the incident have been granted bail earlier. After perusing the record in the light of the submissions made at bar and taking an overall view of all the facts and circumstances of this case, the nature of accusations, severity of punishment in case of conviction, the period of detention already undergone, the unlikelihood of early conclusion of trial without commenting on the merits of the case, this Court is of the view that the applicant may be enlarged on bail. The bail application is allowed. Let the applicant Sonu Rai @ Deepak Rai s/o Radhe Shyam Rai involved in Case Crime No. 216 of 2021 under Sections 302 and 34 I.P.C. Police Station Bakhira, District Sant Kabir Nagar be released on bail on his furnishing personal bonds and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- 1. The applicant will not tamper with the evidence. 2. The applicant will not indulge in any criminal activity. 3. The applicant will not pressurize/intimidate the prosecution witnesses and will co-operate in the trial. 4. The applicant will appear regularly on each and every date fixed by the trial court unless his personal appearance is exempted through counsel by the court concerned. In case of breach of any conditions mentioned above, the trial court will be at liberty to cancel the bail of the applicant." This Court further finds that the Criminal Misc. Bail Application No. 19019 of 2022 of Ajay Rai who has been assigned main role has been rejected by this Court vide order dated 11.7.2022. Learned AGA has opposed the prayer for grant of bail to the applicant, however, could not dispute the fact that the role assigned to the present applicant is identical to the role assigned to the accused persons who have been granted bail by this Court. 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 Jokhan Rai Alias Akhilesh Rai, 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 :- 9.12.2022 Abhishek Digitally signed by ABHISHEK AGRAHARI Date: 2022.12.09 17:00:25 IST Reason: Location: High Court of Judicature at Allahabad