Allowed

Moolveer Alias Monu v. State of U.P.

Allahabad HC4 Jan 2019BAIL/37748/2018

Case brief

AI extract

What is this about?

Court granted bail to the applicant under B.A. No. 37748 of 2018. Bail granted prima facie as the accused has no prior criminal history, noting a state failure to record an injured witness statement. Trial directed to conclude within four months.

What did the court decide?

Bail granted on personal bond with two sureties; trial of the main case directed to conclude within four months.

Moolveer Alias Monu Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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Court No. - 51 Case :- CRIMINAL MISC. 2nd BAIL APPLICATION No. - 37748 of 2018 Applicant :- Moolveer Alias Monu Opposite Party :- State Of U.P. Counsel for Applicant :- Sunil Kumar,Shri A.B.L. Gaur, Senior Advocate Counsel for Opposite Party :- G.A.,Santosh Kumar Tiwari

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Hon'ble Vipin Sinha,J.

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Heard Sri Sunil Kumar, learned counsel for the applicant and Sri Santosh Kumar Tiwari, learned counsel for the complainant and Sri R. K. Maurya, learned AGA appearing on behalf of the State.

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This bail application moved on behalf of applicant praying to enlarge the applicant on bail in Case Crime No.207 of 2014, under Sections 147, 148, 149, 307, 323, 504, 302, IPC, Police Station Salempur, District Bulandshahr.

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This is second bail application. The first bail application was rejected on 16.02.2018.

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When the case was taken up on 15.11.2018 a specific order was passed to the following extent:-

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"Learned counsel for the applicant submits that in the present case the best witness was Mohit who was an injured witness also and his statement under Section 161 Cr.PC. has not been recorded nor he has been produced before the trial court.

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Sri R.K. Maurya, learned AGA on the basis of instructions received has informed the Court that the statement of witness Mohit under Section 161 Cr.P.C. has been recorded.

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If that be the case, the statement of witness Mohit recorded under Section 161 Cr.P.C. be produced before this Court on the next date of listing.

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List on 22.11.2018."

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Subsequently, again the case was directed to be listed on 07.12.2018. Then again on 14.12.2018 the following order was passed:-

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"Sri Sunil Kumar, learned counsel for the applicant and Sri Santosh Kumar Tiwari, learned counsel for the complainant and Sri R. K. Maurya, learned AGA appearing for the State are present.

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A Supplementary affidavit field by Sri Sunil Kumar on behalf of the applicant, the same is taken on record.

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An affidavit is also filed on behalf of the State is taken on record.

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List this case peremptorily on 21.12.2018, as a first case, showing the name of Sri Santosh Kumar Tiwari, as counsel for the complainant."

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The case was adjourned on the basis of the requested made by Sri Santosh Kumar Tiwari, that he would like to file a counter affidavit. A counter affidavit has been filed and the same has been taken on record, but the counter as filed is absolutely unsatisfactory. It does not answered the query of the Court as has been raised by this Court in the order dated 15.11.2018.

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The counsel for the applicant has raised a specific plea in the second bail application that as per the prosecution case Mohit who was an injured witness; he was received injuries in the said incident; he was never examined; his statements under Section 161 Cr.P.C. was never recorded; he was not even shown as a witness in the charge-sheet. The charge for committing the murder has been framed against the present applicant only with regard to the deceased Sunil and no charge has been framed against the present appellant with regard to the murder of Mohit.

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Sri Santosh Kumar Tiwari, learned counsel appearing the complainant does not dispute the fact that the incident has taken

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place on 07.12.2014 and Mohit has expired on 02.12.2015 i.e. after a period of almost one year. It is not been explained as to how and under what circumstances the statement of the said injured witness, who has been a star witness also has not been recorded by the police authority. Nothing has been brought on record to show that any attempt was made to record his statement, but the statement could not be recorded on account of any medical aliment or against doctor's advice.

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Learned AGA has also filed a counter affidavit in compliance of the order dated 15.11.2018. The relevant paragraph of the said counter affidavit i.e. paragraph no.3 is being extracted herein below:-

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"That, thereafter the efforts have been made to verify as to whether the statement of Mohit has been recorded or not and the letter has been sent by the Office of learned Government Advocate, High Court, Allahabad to the police head of District Bulandshahar and thereafter in compliance of the order passed by this Hon'ble Court as well as in pursuance of the letter sent by the Office of learned Government Advocate, High Court, Allahabad the deponent appeared before me, but after verification of the case diary no statement of the Mohit is available on the record and in the narrative of paragraph no.30 of the affidavit filed in support of bail application it has wrongly been mentioned that the statement of Mohit has been recorded, but inadvertently this situation has been occurred, for which the deponent is seeking unconditional and unqualified apology for the inconvenience, if any caused to this Hon'ble Court."

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Thus the stands taken by the State is also self explicit.

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The counsel for the petitioner submits that the applicant is in jail since 07.01.2015, with no previous criminal history.

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In view of the aforesaid facts and circumstances and the fact that applicant is in jail since 07.01.2015, with no previous criminal history, 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.

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The prayer for bail is granted. The application is allowed.

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Let the applicant Moolveer Alias Monu 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:

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i) The applicant shall not tamper with the prosecution evidence.

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ii) The applicant shall not threaten or harass the prosecution witnesses.

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iii) The applicant shall appear on the date fixed by the trial court.

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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.

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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.

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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.

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However, looking to the fact that the applicant is in jail since 07.01.2015 and the witnesses of fact have already been examined, it is directed that the trial of the aforesaid case pending before the concerned court below be concluded as

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early as possible preferably within a period of four months from the date of production of certified copy of this order 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 and Hussain and Another v. Union of India; 2017 (5) SCC 702, if there is no legal impediment. Order Date :- 4.1.2019 VKG

Moolveer Alias Monu v. State of U.P.

Case brief

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Moolveer Alias Monu v. State of U.P.

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