[ad_1]
Allahabad High Court
Vinay vs State Of U.P. Thru. Prin. Secy. Home Lko. on 14 July, 2025
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:40070 Court No. - 11 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10431 of 2024 Applicant :- Vinay Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Atul Verma,Arvind Kumar Verma Counsel for Opposite Party :- G.A.,Rajiva Dubey Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Atul Verma, learned counsel for the applicant, Dr. Surendra Singh, learned Additional Government Advocate for the State and Sri Rajiva Dubey, learned counsel for informant.
2. As per learned counsel for the applicant, the present applicant (Vinay) is languishing in jail since 14.10.2022 in Case Crime No.486 of 2022, under Section 302/34 IPC, Police Station- Kotwali Sadar, District- Lakhimpur Kheri. He has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story.
3. This is second bail application as first bail application bearing Crl. Misc. Bail Application No. 42 of 2023 has been rejected by Hon’ble Mr. Justice Mohd. Faiz Alam Khan on 25.08.2023. The order dated 25.08.2023 reads as under:
“1. Heard Shri Arun Sinha, learned counsel for the applicant, learned A.G.A. for the State as well as Shri Rajiva Dubey, learned counsel appearing for the informant/complainant and perused the record.
2. This bail application has been moved by the accused/applicant- Vinay for grant of bail, in Case Crime No.486 of 2022, under Sections 302/34 I.P.C., Police Station Kotwali Sadar, District Lakhimpur Kheri, during trial.
3. Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.
4. It is further submitted that F.I.R. in this case has been lodged with considerable delay as the incident as per version of the prosecution had taken place at about 10:00pm. on 09.05.2022 and the inquest of the dead body of the deceased has started at 08:07am on 10.05.2022 and postmortem of the dead body of the deceased had started at 12:45pm and the record would reveal that at that point of time, the F.I.R. was not in existence as the same could only be lodged at 13:18 hours on 10.05.2022 and this delay is sufficient to rope innocent persons as the informant was having high pitched enmity with other co-accused persons.
5. It is further submitted that the story as shown by the informant in the F.I.R. would reveal that he claimed to have seen one of the accused namely Bhola to have taken the deceased Jai Prakash Mishra with him on the pretext of attending a party at Babu Bindra Marriage Lawn and on became suspicious, he chased them on motorcycle and saw that near Pramod Paan Bhandar Bhola stopped his motorcycle and applicant and other co-accused persons holding ‘chhura’ and firearm assaulted the deceased, whereby the deceased had died and his son Ajay Mishra and Dev Mani @ Shubham S/o Girish have also arrived there and they have also witnessed the incident and they also witnessed this incident in CCTV footage and he apprehended that this incident has been planned by Rinku Mishra and Aditya Mishra, who were pressuring the informant’s family to do compromise in a case instituted with regard to the murder of his other son.
6. Highlighting the above facts, it is vehemently submitted on behalf of the applicant that the incident as shown by the informant in the F.I.R. is highly improbable and could not be believed. Attention of this Court in this regard has been drawn by learned counsel for the applicant on the statement of one Pramod Gupta, who is the owner of the beetle shop in front of which the incident is shown to have occurred, wherein he attributed the incident to have been caused by accused persons Arjun, Deepak and Varun and he had categorically stated that only these three persons were involved in the incident and no other person was involved and the CCTV footage of the camera, which was installed on his shop, was also taken.
7. It is also submitted that the statement of witness turned accused Bhola Gupta was also recorded, wherein he has also attributed the incident to have been caused by three persons namely Varun Balmiki, Deepak Balmiki and Arjun Balmiki. It is further submitted that thereafter on 12.07.2022, statement of Dev Mani Mishra was recorded, wherein he for the very first time has also implicated the instant applicant as a person, who had committed the incident along with other accused persons and he stated that the applicant Vinay was towards the other side of the CCTV camera, therefore, his footage could not be seen in the CCTV footage.
8. It is also submitted that after many months of the incident, additional statement of Pramod witness was recorded on 17.10.2022, wherein, he after the CCTV footage of the incident is shown to him, has identified Vinay Balmiki (applicant) as one of the assailant. The additional statement of Ajay Kumar Mishra has also been recorded, wherein he also implicated the applicant along with other accused persons and on the basis of the additional statement of these witnesses charge sheet has been filed against the applicant.
9. It is vehemently submitted that additional statement of the witnesses have been recorded in order to falsely implicate the applicant while the applicant has not been seen in the CCTV footage. Criminal history of the applicant comprising of three cases have been adequately explained as in one case pertaining to Sections 323, 504, 506 I.P.C, he has been granted bail, while in other case with regard to Section 376-D I.P.C., final report has been submitted and he has till now not been summoned by any court in that case and the third case has been slapped on him under Gangster Act on the basis of the instant case.
10. It is next submitted that applicant is in jail in this case since 14.10.2022 and charge-sheet in this case has already been submitted and there is no apprehension that after being released on bail the applicant may flee from the course of law or may otherwise misuse the liberty.
11. Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that the applicant has committed an heinous offence and having regard to the material/evidence available against the applicant, he is not entitled to be released on bail, but could not controvert the other factual submissions made by learned counsel for the applicant.
12. Shri Rajiva Dubey, learned counsel appearing for the informant/complainant at first had highlighted the malafide of the applicant in not disclosing criminal history in his bail application and submits that it is only after same has been highlighted by the State and complainant the applicant has explained his criminal history. It is further submitted that the deceased has been done to death by the applicant and other accused persons in most brutal manner and the incident has also been captured in CCTV footage installed on the beetle shop of the Pramod Kumar Gupta, who in his additional statement had identified the applicant.
13. It is further submitted that there are other witnesses namely Ajay Mishra and Dev Mani Mishra, who have identified the applicant as one of the assailants. It is also submitted that deceased had earlier moved an application, whereby he complained to the police authorities about the intimidation given by the instant applicant.
14. It is also submitted that the manner in which the incident has been caused is sufficient enough to deny the facility of bail to the applicant as an application has been moved by the informant with regard to the intimidation given by the unknown persons intimidating him not to oppose the bail application of the instant applicant and an application pertaining to this incident has been sent to the Superintendent of Police, Lakhimpur Kheri on 08.08.2023, thus the applicant is not entitled to be released on bail.
15. Having heard learned counsel for the parties and having perused the record, it is evident that in the F.I.R. the informant, who claimed himself to be an eye witness of the crime, has stated that at the time of incident occurred in front of Pramod Paan Bandhar, he saw the applicant and other accused persons named in the F.I.R. assaulting the deceased and also that the applicant was carrying a knife. In the F.I.R. the incident is also stated to have been seen by two witnesses namely Ajay Mishra (son of the informant) and Dev Mani Mishra @ Shubham. It is also stated therein that the murder has been planned by Aditya Mishra and Rinku Mishra, who are accused persons in the case of murder of other son of the informant as they were pressurizing the deceased to make compromise in that case. In the statement recorded under Section 161 Cr.P.C., the informant has maintained the story as stated in the F.I.R. and the role of assault with knife has been assigned to the applicant.
16. The investigating officer during the course of investigation seized the footage of CCTV camera installed at Pramod Paan Bhandar and New Icon hospital. In the meantime, three accused persons Deepak, Varun and Arjun were arrested and they confessed their guilt, however, they did not take the name of the applicant as their associate. Thereafter statement of Pramod Gupta, owner of the Pramod Paan Bhandar, was recorded on 23.05.2022, wherein he stated that on witnessing the CCTV footage of the incident recorded in the CCTV footage, he found that the incident has been committed by the accused persons Deepak, Arjun and Varun and no other person was involved in the incident. Two sons of Pramod Gupta, Ayush Gupta and Anubhav Gupta, who though were not present at the time of incident, but on witnessing the CCTV footage, identified only three persons namely Varun, Deepak and Arjun, however, it is stated by them that the full incident has not been recorded in the CCTV footage.
17. On 21.06.2022, additional statement of the informant Raj Kumar Mishra was recorded, wherein he again stated to have seen the applicant assaulting the deceased and also that as applicant was out of the focus of the CCTV camera, he could not come in the CCTV footage. On the same day statement of witness Ajay Kumar Mishra, who is named in the F.I.R., was also recorded, wherein he has taken the name of the instant applicant and also that whole incident could not be recorded in the CCTV footage as CCTV cameras were stopped.
18. On 12.07.2022 statement of Dev Mani Mishra @ Shubham another witness named in the F.I.R. was recorded, who also named the applicant as one of the assailant and also that at the time of incident CCTV cameras were stopped. He also stated that at the time of incident brother and father of the deceased had arrived at the scene of the crime.
19. On 04.08.2022, charge sheet was filed against three accused persons namely Varun, Deepak and Arjun and for the applicant, investigation remained pending. Perusal of the case diary would reveal that thereafter investigating officer had searched the applicant but his whereabouts could not be traced and ultimately non bailable warrants were obtained from the court concerned and it was on 15.10.2022 the applicant had surrendered before the trial court.
20. On 17.10.2022, additional statement of Pramod Gupta was recorded, who after witnessing the CCTV footage again, now identified the applicant as another assailant. Additional statement of Ajay Kumar Mishra and Dev Mani Mishra, who in their earlier statements had also taken the name of the applicant, were also recorded. Thus apart from Pramod Gupta the other witnesses named in the F.I.R. as well as the informant, who are claiming himself to be the eye witness since beginning, have taken the name of the applicant as one of the assailants and though Pramod Gupta had not taken the name of the applicant in his first statement, but significantly his two sons Ayush Gupta and Anubhav Gupta have categorically stated that ‘isse age ki ghatna CCTV me nahi ayi’. In his additional statement Pramod Gupta had also identified the applicant as one of the assailant. The postmortem of the deceased would reveal that the deceased had sustained firearm wound as well as various punctured wounds along with lacerated wound and cause of his death was ascertained as shock and hemorrhage due to ante mortem injuries.
21. Thus keeping in view all the facts and circumstances of the case and having regard to the evidence available on record against the applicant, I do not find any good ground to release the applicant on bail. Thus the bail application moved on behalf of applicant – Vinay is hereby rejected.
22. The trial court is directed to proceed with the trial and make all out efforts to conclude the same within one year from today. If significant progress is not made in the culmination of the trial, the applicant may renew his prayer of bail before this Court after passage of the aforesaid period.
23. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this Court on the merits of the case.
24. Office is directed to immediately send a copy of the instant order to the trial court concerned for compliance.
25. Case diary of the case be immediately returned to learned A.G.A.”
4. Learned counsel for the applicant has stated that while rejecting the first bail application of the present applicant, this Court specifically directed the learned trial court in para-22 that the trial be concluded within a period of one year from today, but about two years periods have lapsed, the trial has not been concluded. He has further submitted that out of total 30 prosecution witnesses, only two prosecution witnesses have been examined.
5. In compliance of the order of this Court, learned trial court has submitted its report dated 15.10.2024 wherein it has been indicated that for recording the statement of PW-1 Raj Kumar Mishra, four dates were fixed but he did not cooperate in the trial proceeding, however, now his statement has been recorded in 47 pages. Therefore, learned counsel for the applicant has stated that it is prosecution witness No.1, who delayed the trial. Another prosecution witness PW-2 has also been examined. Sri Verma has explained the criminal history of the present applicant in para 78, wherein he has indicated that in one criminal case, the present applicant has been enlarged on bail and in second criminal case, final report has been filed.
6. Sri Atul Verma, learned counsel for the applicant has relied upon the judgments of the Apex Court in re; Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No. 693 of 2021 (Arising out of SLP (Crl) No.3610 of 2020), wherein the Apex Court has held that if there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial period then the period of incarceration may be considered as a fresh ground. Besides, he has referred the dictum of the Apex Court in re; Gokarakonda Naga Saibaba v. State of Maharashtra, (2018) 12 SCC 505, wherein it has been held that if all fact/ material witnesses have been examined, the bail application of the accused may be considered. Learned counsel has submitted that in the present case, two prosecution witnesses have been examined, therefore, the present applicant may be enlarged on bail. He has further submitted that the applicant undertakes that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order.
7. Sri Rajiva Dubey, learned counsel for informant has vehemently opposed the bail application by submitting that one application has been filed before the learned trial court by the prosecution that no fact witness except the PW-1 & PW-2, who have already been examined, would be examined and the expert witnesses i.e. doctor, Investigating Officer and other police witnesses would be examined, therefore, instead of granting bail to the present applicant direction may be issued to expedite the trial. Learned AGA has also opposed the bail application reiterating the same argument which has been said by Sri Rajiva Dubey.
8. Without entering into merits of the issue; considering the arguments of learned counsel for the parties; the fact that despite the specific direction being issued by this Court while rejecting the first bail application on 25.08.2023 to conclude the trial within a period of one year, about two years’ period have passed, the trial has not been concluded till date. Further, prosecution witnesses PW-1 & PW-2 have been examined and expert witnesses i.e. doctor, Investigating Officer and other police witnesses would be examined, therefore, there is no possibility of the trial to be concluded in near future; considering the dictum of the Apex Court in re; K.A. Najeeb (supra), Paras Ram Vishnoi (supra) and Gokarakonda Naga Saibaba (supra); the period of incarceration of the present applicant i.e. about two years eight months and undertaking of the applicant that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order, I find it appropriate to release the applicant on bail.
8. Accordingly, the bail application is allowed.
9. Let the applicant (Vinay) be released on bail in the aforesaid case crime number 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:-
(i) The applicant shall appear before the Investigating Officer to cooperate in the investigation and shall further remain present to cooperate in the investigation as and when the Investigating Team calls him to appear and if the charge-sheet is filed against him he shall cooperate in the trial proceedings properly and 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.
(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/269 of the B.N.S., 2023.
(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./84 of B.N.S.S., 2023 is issued and the 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 IPC/208 of the B.N.S., 2023.
(iv) The applicant 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./351 of B.N.S.S., 2023. 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. The present applicants shall not leave the country without prior permission of the Court.
10. Before parting with, learned trial court is directed to expedite the trial in terms of Section 309 Cr.P.C./346 B.N.S.S. without giving any unnecessary adjournment to any of the parties, fixing short date, if possible, on day to day basis and if any of the witnesses does not cooperate in the trial court proceedings, any appropriate coercive steps may be taken strictly in accordance with law.
Order Date :- 14.7.2025
Reena/-
(Rajesh Singh Chauhan,J.)
[ad_2]
Source link