The Single Judge granted bail to the applicant accused of murder, released on personal bond and sureties with conditions against tampering and witness harassment, directing expedited trial.
Released on bail with personal bond and two sureties; directed expedited trial under Section 309 Cr.P.C.
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Reserved
Court No. - 51
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32462 of 2016 Applicant :- Harish Chandra Tiwari @ Sonu Tiwari Opposite Party :- State Of U.P. Counsel for Applicant :- Manoj Kumar,Amit Rai,Maruti Kumar Tripathi,Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.,Mohammed Iftekhar
Hon'ble Vipin Sinha,J.
Heard Sri Rajiv Lochan Shukla, learned counsel for the applicant, Sri Mohamed Iftekhar Farooqui, learned counsel for the complainant and Sri Rajesh Mishra, learned A. G. A. for the State.
Applicant has moved the present bail application seeking bail in Case Crime No. 212 of 2016, under Sections 302 I.P.C., P.S. Bansgaon, District Gorakhpur.
I have perused the prosecution story as set up in the F.I.R. and also the bail rejection order.
The contention as raised at the bar by learned counsel for the applicant is that even though it is correct at the first glance that the applicant has been named in the FIR and though it is also correct that it is a day light incident and specific role has also been assigned to the applicant and eye-witness account is also present, but much emphasis has been placed upon the circumstances of the case, which is being reiterated herein as under:
(a) an incident took place on 30.7.2016 itself with regard to which there is an FIR in which the applicant has been named as a sole accused and this FIR has been lodged by Asha Devi;
(b) with regard to the same incident an FIR has also been lodged by the mother of the applicant, copy of which has been annexed as annexure no. 9 to the affidavit filed in support of the bail application;
Learned counsel for the applicant submits that it is evident from the FIR as well as from the site-plan that the incident had taken place in front of the house of the applicant and the applicant has come up with a specific plea that when other side attacked upon the applicant's side then out of fear and in a self defence the applicant had fired from the licensee gun of his father. The contention is that it was
only when the other side had attacked the applicant side while they were negotiating and when the father was killed by the other side, in order to protect his family member or himself, the applicant had used his father's licensee gun which resulted in lodging of the present FIR in which the bail has been sought. It is further submitted that the assailants included Diwakar Yadav, who is a known criminal and has criminal history of five cases. It is lastly contended that the accused applicant is in jail since 1.8.2016 and in case he is released on bail, he will not misuse the said liberty.
Learned counsel for the complainant has opposed the prayer for bail with the contention that the accused in the cross FIR has already been refused bail by this Court and thus the applicant is also not entitled for bail and it a day light incident and eye-witness account is present.
However, it is not being disputed that Diwakar Yadav was having criminal history of five cases whereas the present applicant has no criminal history.
The bail application has been vehemently opposed by learned A. G. A.
In view of the aforesaid facts and circumstances, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out. However, the said prima facie view of this Court will not in any manner adversely affect the case of the prosecution.
The prayer for bail is granted. The application is allowed.
Let the applicant Harish Chandra Tiwari @ Sonu Tiwari involved in the aforesaid case crime number be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
i) The applicant shall not tamper with the prosecution evidence.
ii) The applicant shall not threaten or harass the prosecution witnesses.
iii) The applicant shall appear on the date fixed by the trial court.
iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission, of which applicant is suspected.
v) The applicant shall not directly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade the applicant from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, the learned counsel for the complainant is free to move an application for cancellation of bail before this Court.
However, it is directed that the aforesaid case crime number pending before the concerned court below be decided expeditiously in accordance with Section 309 Cr.P.C. and in view of principle as has been laid down in the recent judgment of Hon'ble Apex Court in the case of Vinod Kumar v. State of Punjab reported in 2015 (3) SCC 220 , if there is no legal impediment.
It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence.
Let a copy of the order be certified to the court concerned for necessary compliance.
Order Date :- 4.12.2018
Kuldeep
2 issues framed by the court
Whether bail should be granted to the applicant in a murder case alleging self-defence.
Whether expedited trial under Section 309 Cr.P.C. is directed due to lack of legal impediment.
Colour shows how this judgement treated each authority
1 provisions across 1 enactments
Harish Chandra Tiwari @ Sonu Tiwari
Vipin Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
