Allowed

Vivek Kumar v. State of U.P.

Allahabad HC17 Nov 2020BAIL/34596/2020

Case brief

AI extract

What is this about?

The court allowed the bail application filed by Vivek Kumar, a co-accused in an affray involving injuries to both sides. Relying on article 21 and Dataram Singh, the court observed that the applicant made out a case for bail. Bail was granted on personal bond without sureties initially due to operational constraints, subject to strict conditions.

What did the court decide?

The applicant was ordered to be released on bail on execution of a personal bond without sureties initially, with direction to furnish sureties within a month after normal court functioning, subject t

Vivek Kumar 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. - 34596 of 2020

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Applicant :- Vivek Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.,Sushil Kumar Pandey

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Hon'ble Rahul Chaturvedi,J.

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Heard Shri Rajiv Lochan Shukla, learned counsel for the applicant; Shri Sushil Kumar Pandey, learned counsel for the complainant; learned A.G.A. and also perused the record.

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The applicant is facing prosecution in Case Crime No. 98 of 2020, under Section 147, 148, 149, 452, 307, 302 read with 34 IPC, Police Station-Titawi, District-Muzaffarnagar and is in jail since 11.04.2020 .

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Submission of learned counsel for the applicant is that the present case is a cross-case where both the parties sustained injuries. From the side of the applicant Ashu Malik has received a gun shot injury and Ashu Malik was remained in hospital for 10 good days as their was bullet embedded in his chest region. Whereas, on the other side, Nitin has sustained a solitary gun shot injury in the "inguinal region" of the body wheres Manoj and Krishnapal have sustained lathi injuries. The informant attributing a general role to all the accused persons. In the 161 Cr.P.C. statement for the first time the informant has specified the role of causing fatal gun shot to Nitin by Ashok son of Ram Saran and Ashok Balmiki whereas the role attributed to present applicant is hitting danda on Manoj. In the totality of circumstances, it is not possible to decipher at the stage of bail, as which group was aggressor over other group of persons, as both the sides have sustained gun shot wound over the deceased/injured persons.

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Shri Sushil Kumar Pandey, learned counsel for the complainant has vehemently opposed the bail application by submitting that the applicant has got a criminal history of one case.

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I have perused the criminal history of the applicant which is N.C.R. No. 6 of 2020 except this there is no criminal antecedents.

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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

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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.

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Let the applicant Vivek Kumar , 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

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PROCEED AGAINST HIM IN ACCORDANCE WITH LAW.

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(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.

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

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

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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 :- 17.11.2020 Sunil Kr. Gupta

Vivek Kumar v. State of U.P.

Case brief

What is this about?

What did the court decide?

Vivek Kumar v. State of U.P.

Case brief

What is this about?

What did the court decide?

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