Allowed

Nitish Yadav Alias Aman v. State of U.P. Thru. Prin. Secy. Home Deptt., Lko. and Another

Allahabad HC1 Feb 2024/558/2023

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal against the rejection of bail. Finding that the trial was not likely to conclude soon, the court set aside the impugned order and granted bail on a personal bond and two sureties with stringent attendance conditions.

What did the court decide?

Impugned order dated 12.01.2023 set aside; Appellant released on bail on personal bond and two sureties with specific attendance undertakings.

Nitish Yadav Alias Aman Vs State of U.P. Thru. Prin… — Caste Atrocities | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:9573

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Court No. - 13

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Case :- CRIMINAL APPEAL No. - 558 of 2023

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Appellant :- Nitish Yadav Alias Aman Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt., Lko. And Another Counsel for Appellant :- Jay Kumar Soni,Anand Dubey,Deepak Yadav Counsel for Respondent :- G.A.

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Hon'ble Rajeev Singh,J.

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Heard learned counsel for the appellant and learned A.G.A. for the State.

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Learned A.G.A., while informing that the notice is already served on respondent no. 2 on 26.02.2023, places a written report duly signed by Neeraj Dwivedi, Sub-Inspector, P.S. Gosainganj, District Lucknow. The said report is taken on record.

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None is present on behalf of respondent no. 2.

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The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the impugned order dated 12.01.2023 passed by Special Judge, SC/ST Act, Lucknow in Bail Application No. 11377 of 2022 arising out of F.I.R. No. 436 of 2022, under Section 302 I.P.C. and Section 3(2)(v) of SC/ST Act, P.S. Gosainganj, District Lucknow.

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Learned counsel for the appellant submits that appellant has falsely been implicated in the present case. It is further submitted that as per the prosecution case, the F.I.R. was lodged against Chhotu @ Chandra Prakash on 13.09.2022. On 14.09.2022, statement of independent witness, Vipin was recorded under Section 161 Cr.P.C., in which, he stated that on the date of incident, at about 11 a.m., appellant came along with co-accused, Golu to his shop and asked for his mobile with the request that some necessary call has to be made. As they were well known to Vipin, the mobile phone was given to them and they made a call to someone. After 15-20 minutes, one person came on the

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motorcycle and the appellant and other co-accused, while asking him that he took a lot of time, sat on the vehicle as pillion riders and went towards Gauriya. After 1/2 hour, they came back and had taken 'Pan Masala' from the shop situated at the canal bridge and thereafter, they went towards brick kiln, Lal Shah. He also stated that after sometime, Vipin heard a sound of cracker, but he did not care. After sometime, he saw that appellant and Golu were coming back very fast and went to their houses. After sometime, it came into the notice of Vipin that someone has been killed.

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Submission of the learned counsel for the appellant is that call detail of Vipin was not taken by the Investigating OfÏcer. It is also submitted that when this fact came into notice of Vipin that his statement under Section 161 Cr.P.C. has been recorded by the Investigating OfÏcer, he moved an afÏdavit to Special Judge (SC/ST Act) that he had not made any statement to the Investigating OfÏcer. It is next submitted that the charge sheet has been filed by the Investigating OfÏcer in mechanical manner. It is lastly submitted that the court below has not considered all these facts while rejecting the bail application and the trial is also not going on. It is, thus, submitted that the impugned order is liable to be set aside and the appellant, who does not have any criminal antecedent and is in jail since 17.09.2022, is entitled for bail. It is also submitted that the appellant is ready to cooperate in the trial.

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Learned A.G.A. opposes the prayer of the appellant and submits that the statement of Vipin was recorded and on his mobile phone, the accused persons called the deceased. However, he does not dispute the fact that the call detail report was not collected by the Investigating OfÏcer. He also does not dispute that the genuineness of the afÏdavit given by Vipin before the court below cannot be considered at this stage.

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Considering the arguments advanced by the learned

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counsel for the appellant, learned A.G.A. and going through the contents of the appeal, F.I.R., impugned order, statement of Vipin recorded under Section 161 Cr.P.C. and other witnesses as well as other relevant documents, it is evident that as per the prosecution case, the deceased was called by the appellant and other accused person by making a call from the mobile phone of Vipin, but no call detail has been collected during the course of investigation.

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In view of above facts and circumstances as also keeping in view the fact that the trial of the case is not likely to be concluded in near future, the appeal has substance and it is accordingly, allowed.

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Impugned order dated 12.01.2023 passed by Special Judge, SC/ST Act, Lucknow in Bail Application No. 11377 of 2022 arising out of F.I.R. No. 436 of 2022, under Section 302 I.P.C. and Section 3(2)(v) of SC/ST Act, P.S. Gosainganj, District Lucknow is hereby set aside.

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Let appellant, Nitish Yadav Alias Aman be released on bail in the aforesaid case crime number on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-

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(i) The appellant shall file an undertaking to the effect that he will not seek any adjournment on the dates 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 appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufÏcient cause, the trial court may proceed against him under Section 229A of the Indian Penal Code.

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(iii) In case, the appellant misuses the liberty of bail during

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trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the appellant 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 of the Indian Penal Code.

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(iv) The appellant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant is deliberate or without sufÏcient 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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Order Date :- 1.2.2024 VKS

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Digitally signed by :- VIVEK KUMAR SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Nitish Yadav Alias Aman v. State of U.P. Thru. Prin. Secy. Home Deptt., Lko. and Another

Case brief

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Nitish Yadav Alias Aman v. State of U.P. Thru. Prin. Secy. Home Deptt., Lko. and Another

Case brief

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What did the court decide?

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