Allowed

Bholu Tiwari@Yogesh Tiwari v. State of U.P

Allahabad HC9 Nov 2020BAIL/27354/2020

Case brief

AI extract

What is this about?

Allowed bail application filed by accused facing charges of murder and attempted murder. Granted bail on personal bond without initial sureties due to court functioning issues, subject to strict conditions including trial completion within one year and verification of order copies.

What did the court decide?

Applicant to be released on bail on personal bond without sureties till normal functioning of courts restored, subject to strict conditions.

Bholu Tiwari@Yogesh Tiwari Vs State of U.P — Bail and Remand | Allahabad HC (2020)

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Court No. - 67

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27354 of 2020

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Applicant :- Bholu Tiwari@Yogesh Tiwari Opposite Party :- State Of U.P Counsel for Applicant :- Vishwa Nath Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Heard Shri Vishwa Nath Pandey, learned counsel for the applicant, learned A.G.A. and also perused the record.

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The present bail application filed on behalf of Bholu Tiwari @ Yogesh Tiwari seeking his bail in Session Trial No.461 of 2017 arising out of Case Crime No.366 of 2017, u/s 147, 148, 149, 307, 302 I.P.C. and Section 3/25 of Arms Act, P.S.-Tarya Sujan, District-Kushi Nagar.

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Submission of learned counsel for the applicant is that the applicant is one of the nine named accused persons and all of them have been attributed a general and omnibus role of firing upon the deceased and the injured. Post-mortem report reveals that the deceased has sustained a singular fatal injury whereas the injury report of the injured indicates that he too has sustained one firearm injury over his person. The injured in his statement u/s 161 Cr.P.C. has clearly attributed the role of assault to co-accused Raju. It is contended that the main assailant Raju has already been enlarged on bail by Co-ordinate Bench of this Court on 4.11.2020 while deciding Criminal Misc. Bail Application No.24306 of 2020. Submission of counsel is that the case of applicant stands on better footing than that of Raju Tiwari. There is recovery of country made pistol from the applicant after three days of the incident which appears to be doubtful on account of the fact that there is no independent witness to the alleged recovery. The bail of the applicant was rejected by Session Court on 29.7.2020 and he is in jail since 13.6.2017 having no criminal antecedents.

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Learned A.G.A. has opposed the prayer for bail.

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Keeping in view that the main accused has already been released on bail, 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

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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.

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Let the applicant Bholu Tiwari @ Yogesh Tiwari, who is involved in aforementioned case 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.

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(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.

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(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.

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(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., MAY BE ISSUED AND IF 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.

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(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.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE

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EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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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.

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Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:

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1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

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2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

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3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.

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4. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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.

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Order Date :- 9.11.2020 M. Kumar

Bholu Tiwari@Yogesh Tiwari v. State of U.P

Case brief

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Bholu Tiwari@Yogesh Tiwari v. State of U.P

Case brief

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