Dismissed

Yatendra v. State of U.P.

Allahabad HC27 Mar 2023BAIL/43822/2022

Case brief

AI extract

What is this about?

Single judge bench rejected bail application of an applicant accused of murder under IPC Sections 302 and 306. The court held that the applicant violated previous bail conditions by absconding, causing delay in trial, and noted that facts distinguishing him from co-accused receiving bail precluded extending parity.

What did the court decide?

Bail application rejected; applicant not released on bail.

Yatendra Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43822 of 2022

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Applicant :- Yatendra Opposite Party :- State of U.P. Counsel for Applicant :- Subhash Chandra Yadav Counsel for Opposite Party :- G.A.,Kuldip Singh Yadav

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Hon'ble Sanjay Kumar Singh,J.

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Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and Mr. Kuldip Singh Yadav, learned counsel appearing on behalf of the first informant.

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By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 749 of 2016, under Sections 147, 364, 302, 306 of I.P.C., Police Station Sirsaganj, District Firozabad, seeks enlargement on bail during the pendency of trial.

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As per prosecution case, in brief, informant Vikas, who is brother of the deceased lodged F.I.R. on 24.10.2016, against six accused persons, namely, Ramautar @ Subhash Chandra, Dharmendra, Yatendra (present applicant), Tinku, Sanju and Satish Chandra, with the allegations inter-alia that at about 10:00 PM on 22.10.2016, they took away his brother Alok Kumar along with them saying that they are taking him to the field and will come back soon, but he did not return, then hectic search was made but all went in vain. On 24.10.2016, at about 6:00 PM, dead body of Alok Kumar was found in the river. In the F.I.R., it is also alleged that since aforesaid accused persons had dispute with the brother of the informant and they had also threatened him, therefore, they after abducting committed his murder.

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It is argued by learned counsel for the applicant that initially F.I.R. was lodged under Section 147, 364 and 302 I.P.C., against six named accused but after investigation, charge sheet has been submitted under Section 306 I.P.C. against five persons only,

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including the applicant. Thereafter, applicant was granted bail by the coordinate Bench of this Court, vide order dated 04.07.2017, in Criminal Misc. Bail Application No. 23222 of 2017. After recording the statement of informant, his mother and the doctor as PW-1, PW-2 and PW-3, an application was moved on 11.07.2018 to alter the charge which was allowed and charge was altered vide order dated 17.01.2020, under Section 302 I.P.C., which was challenged by the applicant by means of an Application under Section 482 Cr.P.C. No. 21045 of 2021 and the same is pending. Referring the statement of Doctor- PW-3, much emphasis has been given by contending that no injury was found on the body of deceased and cause of death of the deceased was drowning and according to his opinion, death took place 4-5 days earlier, which is not corroborated from the prosecution case. It is pointed out that the coaccused Dharmendra has been granted bail by the coordinate Bench of this Court, vide order dated 19.01.2023, in Criminal Misc. Bail Application No. 43556 of 2022 and in the said order, it was wrongly transcribed that co-accused Sanju has been granted bail vide order dated 12.10.2022, in Criminal Misc. Bail Application No. 25925 of 2022, which was later on corrected vide order dated 27.02.2023, therefore, applicant who is languishing in jail since 05.09.2022, is entitled to be released on bail.

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Per contra , learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that in this case, out of six accused persons, co-accused Tinku is employed in Police Department, therefore on his influence, the Investigating OfÏcer, without conducting fair investigation, exonerated him and submitted charge-sheet under Section 306 I.P.C. against rest of the accused persons. Much emphasis has been given by contending that after submission of charge sheet, the applicant- Yatendra along with co-accused Ramautar @ Subhash Chandra has been granted bail by common order dated 04.07.2017, by the coordinate Bench of this Court, in Criminal Misc. Bail Application No. 23222 of 2017, subject to condition that they shall not seek any adjournment

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on the dates fixed in the matter, if the witnesses are present in the Court. In case of default of said 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. Further condition was also imposed that in case they misuse the liberty of bail and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and they fail to appear before the Court on the date fixed in such proclamation, then trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code. It is pointed out that the co-accused Ramautar @ Subhash Chandra has complied with the order dated 04.07.2017 and statements of aforesaid three prosecution witnesses were recorded between 20.09.2017 to 06.10.2017, but thereafter trial of the applicant and other co-accused could not proceed except, Ramautar @ Subhash Chandra, because all accused persons including the applicant absconded as soon as charge under Section 302 I.P.C. has been altered on 17.01.2020. It is also pointed out that even after issuing non-bailable warrant on 16.03.2021, the applicant did not appear before the trial court. When a process under Section 82 Cr.P.C. was issued on 23.04.2022 against him, he was arrested on 05.09.2022 at the stage of order under Section 83 Cr.P.C. So far as aforesaid application under Section 482 Cr.P.C. is concerned, it is also pointed out that the order dated 17.01.2020 in respect of altering the charge was under challenge in the said application which was simply filed before this Court but no sincere efforts were made to argue the matter by the counsel for the applicant when case was taken up, therefore, the same is still pending without any interim stay order. So far as submission of learned counsel for the applicant that co-accused Ramautar has been granted bail, is concerned, it is pointed out that his case has been distinguished by the coordinate Bench of this Court while rejecting the bail application of co-accused Sanju, vide order dated 12.10.2022, in Criminal Misc. Bail Application No. 25925 of 2022 on the ground that he has not violated the terms and conditions of bail order dated 04.07.2017 passed by this Court. So

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far as bail order dated 19.01.2023 of co-accused Dharmendra is concerned, it is argued that one of the main consideration for granting bail to coaccused Dharmendra as observed by the coordinate Bench of this Court is that there is no allegation of misuse of liberty of bail against him whereas this fact is wrong, therefore, on this ground, also case of present applicant is distinguishable.

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Having heard learned counsel for the parties and examined the matter in its entirety, I find that There is no dispute about the fact up to 06.10.2017, three prosecution witnesses have been examined before the trial court and thereafter, trial could not proceed because of absconding of applicant and three accused persons namely Sanju, Dharmendra and Satish Chandra and the applicant after absconding about 2 years and 8 months, arrested on 05.09.2022. I also find that applicant has violated the conditions of bail under Section 306 I.P.C. imposed upon him in the order dated 04.07.2017 as noted above. So far as evidence of PW-1, PW-2 and PW-3 are concerned, this Court is of the view that this Court at this stage, in exercise of power under Section 439 Cr.P.C. does not feel it appropriate to evaluate and discuss the evidence in detail, as defence of the accused is still open to be urged before the trial court. Under the facts of the case as discussed above, the benefit of the parity of bail order dated 19.01.2023 of coaccused Dharmendra cannot be extended to the present applicant. This Court is of the view that every case turns on its own facts, even one additional fact and circumstances may alter the entire aspects of the matter. A judge is not obliged to pass an order against his conscious merely in order to maintain consistency.

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In view of the above, considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, severity of punishment, misuse of liberty of bail order dated 04.07.2017 and delay in getting the trial concluded on the part of the applicant, I do not find any good ground to release the applicant on bail.

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Accordingly, the bail application is rejected.

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It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.

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Order Date :- 27.3.2023 Kashifa

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Digitally signed by :- KASHIFA High Court of Judicature at Allahabad

Yatendra v. State of U.P.

Case brief

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Yatendra v. State of U.P.

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