Allowed

Rajendra Gupta Third Bail v. State of U.P.

Allahabad HC11 Jan 2024/11842/2019

Case brief

AI extract

What is this about?

In this third bail application, the Allahabad High Court allowed the release of the applicant Rajendra Gupta on bail. The Court considered the applicant's prior convictions and bail misuse history but found that subsequent witness depositions did not link him to the offence, noting that the person assigned a firing role was already on bail. The applicant was granted bail on a personal bond and two

What did the court decide?

Released on personal bond and two sureties of Rs. 25,000 each with conditions to attend hearings and not tamper with evidence.

Rajendra Gupta Third Bail Vs State of U.P. — Bail and Remand | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:2976

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Court No. - 12

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11842 of 2019

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Applicant :- Rajendra Gupta Third Bail Opposite Party :- State of U.P. Counsel for Applicant :- Pooja Bhatia,Aasif Razzaque Khan,Amol Kumar,Jitendra Singh,Kaushal Kishore Tewari,Pooja Bhatia,Shivanshu Misra

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Counsel for Opposite Party :- G.A.,Abhishek Misra

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Hon'ble Pankaj Bhatia,J.

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Heard Sri K. K. Tiwari, the counsel for the applicant, Sri Abhishek Misra the counsel for the informant as well as learned AGA and perused the record.

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The accused-applicant seeks bail in Case Crime No.451 of 2017 under sections 302, 120-B, 34 IPC, P.S. Sarojini Nagar, District Lucknow.

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This is third bail application, the first bail application of the accused-applicant was rejected by this Court vide order dated 22.11.2018 and while doing so, the criminal history of the applicant was disclosed and that weighed heavily on the mind of the court while rejecting the bail application. It was also observed that the applicant has already been convicted in Case Crime No.319 of 2003 and during the pendency of the appeal, he was enlarged on bail and during the enlargement on bail, he has allegedly committed the act in question. The second bail application was rejected by this Court vide order dated 22.04.2019 and while rejecting the said, the court observed that there was no change circumstances except that two of the coaccused have been enlarged on bail by this Court. The court considering the long history and the fact that he was convicted for an offence under sections 304 and 328 IPC and while being enlarged on bail, he he committed the offence in question, the second bail application was rejected.

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While arguing the present third bail application, the first submission of the counsel for the applicant is that the applicant is in custody since 24.06.2018 and after the rejection of the second bail application, one of the co-accused Dharmraj Saini has been enlarged on bail on 10.12.2019 passed in Bail No.9945 of 2019. In addition to the said, the counsel for the applicant argues that during the course of trial, the informant as well as three eye witnesses have been examined, their depositions has been placed on record by means of the supplementary affidavit.

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The counsel for the applicant draws my attention to the statement of the informant who has stated that while writing the FIR, the name of the accused was mentioned, based upon the information received. As regards the second eye witness, in the cross examination itself, it was stated that the said witness has identified three accused who were standing and out of the said three persons, he identified and named one Azam Malik who has caused fire, which resulted the death of the deceased. He also draws my attention to the statement of PW-3 Vishal Singh wherein in his cross examination, he had deposed that the incident was neither witnessed by him nor by his mother, who was the informant and the name of the persons were taken based upon a guess.

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In the light of the said, the submission of the counsel for the applicant is that the person who was assigned the role of firing, which led to the death of the deceased, was Azam Malik who has been enlarged on bail even before rejection of the second bail application and thus from the depositions made, clearly the implication of the applicant with the offence in question, at least become suspect. He thus, argues that the applicant, who has spent more than five and a half years in custody, should be enlarged on bail.

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As regard the criminal antecedents, the counsel for the applicant discloses the facts in para 34 of the bail application wherein in all the cases, the applicant is on bail and in the case crime no.319 of 2003 wherein he was convicted under section 304 IPC, he was enlarged on bail in the appeal. He argues that in view of the depositions and the submissions, the applicant cannot be linked with the offence in question, as such, he should be enlarged on bail.

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The counsel for the informant as well as learned AGA, on the other hand, strongly oppose the bail application by arguing that while dismissing the first bail application as well as the second bail application, it had weighed very heavily in the mind of the court that the applicant despite being convicted for an offence under section 304 IPC and enlarged on bail has committed the offence in question and this fact should also be considered by this court while deciding the present third bail application. He places reliance on the judgment of the Supreme Court in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav; 2005 SCC (Cri) 489. The law and the considerations to be kept in mind of the courts while deciding the successive bail applications. The Court recorded as under :

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"8. On 23-9-2002 the accused-respondent moved the eighth bail application which came to be allowed by the High Court by its order

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dated 23-5-2003 solely on the ground that the accused-respondent had undergone incarceration for a period of 3 years and that there was no likelihood of the trial being concluded in the near future and an appeal filed against the said grant of bail came to be allowed on the ground that the High Court could not have allowed the bail application on the sole ground of delay in the conclusion of the trial without taking into consideration the allegation made by the prosecution in regard to the existence of prima facie case, gravity of offence, and the allegation of tampering with the witness by threat and inducement when on bail. This Court held that since the above factors go to the root of the right of the accused to seek bail, non-consideration of the same and grant of bail solely on the ground of long incarceration vitiated the order of the High Court granting bail. This Court also observed that though an accused had a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has duty to consider the reasons and grounds on which the earlier bail applications were rejected and in such cases the court also has a duty to record what are the fresh grounds which persuaded it to take a view different from the one taken in the earlier applications. This Court in that order also found fault with the High Court for not recording any fresh grounds while granting bail and for not taking into consideration the basis on which earlier bail applications were rejected. The Court also emphasised in the said order that ignoring the earlier orders of this Court is violative of the principle of binding nature of the judgments of the superior court rendered in a lis between the same parties, and noted that such approach of the High Court in effect amounts to ignoring or overruling and thus rendering ineffective the principles enunciated in the earlier orders especially of the superior courts. On that basis, the appeal of the complainant challenging the grant of bail came to be allowed cancelling the bail granted to the respondent. This order of this Court is reported as Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] ."

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In view of the said, the submissions of the counsel for the informant is that the bail application should be rejected.

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Considering the arguments advanced, in sum and substance, the submission of the counsel for the applicant is that after the rejection of the second bail application, one of the coaccused has been enlarged on bail, secondly the main accused Azam Malik against whom the role of firing has been assigned was enlarged on bail even prior to the rejection of the second bail application and thirdly on the basis of the statement of the informant and the eye witnesses, the complicity of the applicant with the offence in question becomes suspect and thus, it cannot also be said that the applicant had misused the liberty granted by this Court while granting bail in an appeal filed by the applicant in a case where he was convicted under section 304 IPC, whereas the submission of the counsel for informant is that there are no changed circumstances warranting grant of bail, more so, when the factors which made in the mind of the court while deciding the first and second bail application still exists.

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The said submissions of the learned AGA, prima-facie,

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merits rejection for the sole reason that during recording of the testimony of the informant and the eye witnesses, the applicant's name has not surfaced with regard to the commission of the present offence. Admittedly, Azam Malik whose name has surfaced of having caused the gunshot injury has already been enlarged on bail. Thus, this court can safely presume, on the basis of the evidence led so far, that the evidence to prosecute the applicant with the offence in question is prima-facie missing at this stage coupled with the fact that the grounds earlier taken for rejection that the applicant had committed the offence while on bail loose significance in view of the subsequent depositions which primarily do not link the applicant with the offence in question coupled with the fact that the informant and the eye witnesses have already been examined, thus, there is no material to come to the conclusion that the applicant if enlarged on bail, the trial can get adversely affected and also considering the fact that the applicant has spent more than five and six months in custody, the applicant is entitled for the bail. Thus, the bail application is allowed.

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Let the applicant Rajendra Gupta be released on bail in aforesaid first information report number subject to his furnishing a personal bond and two reliable sureties of Rs.25000/- (Twenty Five Thousand) each of the like amount to the satisfaction of the court concerned with the following conditions:

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(a) The applicant shall execute a bond to undertake to attend the hearings;

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(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and

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(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the

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evidence.

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Order Date :- 11.1.2024 VNP/-

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Digitally signed by :- VISHVANATH PRASAD SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

Rajendra Gupta Third Bail v. State of U.P.

Case brief

What is this about?

What did the court decide?

Rajendra Gupta Third Bail v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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