Banwari Vs State of U.P. Thru. Prin. Secy. Home Deptt. Civil Sectt. Lko.

Neutral Citation No. - 2024:AHC-LKO:40975

Court No. - 21

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5943 of 2024

Applicant :- Banwari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Civil Sectt. Lko. Counsel for Applicant :- Utkarsh Misra,Manoj Kumar Mishra,Piyush Tripathi,Shivam Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Jaspreet Singh,J.

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Heard learned counsel for the applicant and learned AGA for the State-respondent.

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By means of the instant bail application, the applicant seeks bail in respect of FIR/Case Crime No.47 of 2024, under Section 459 IPC and Section 3/25 Arms Act, Police Station Purakalandar, District Ayodhya, during trial.

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It is submitted that the FIR has been lodged by the complainant alleging therein that in the intervening night of 19/20.02.2024 at around 03.15 am, three unknown persons are alleged to have entered into the house of the complainant. They were in the process of breaking the door upon which the nephew of the complainant ran upstairs and on seeing him, the accused persons ran away. When the nephew of the complainant chased the accused persons, one of them opened fire which hit on the thigh of the nephew of the complainant.

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The submission of the learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the case. It is urged that the applicant is not named in the FIR. Even the injured did not identify the applicant. It is at a later stage that the version as contained in the FIR was improved by the mother of the injured stating that she had seen the aforesaid three accused persons as they were collecting and selling honey from day before and she received intimation from one Samoraj Verma who has identified the aforesaid three accused persons namely, Banwari (the applicant), Murari and Vishram.

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It is further submitted that insofar as the alleged recovery is concerned, the firearm is allegedly recovered from the applicant, whereas insofar as the co-accused are concerned, merely a sum of Rs. 16/- and Rs. 40/- were said to have been

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recovered from their possession. Even the statement given by the eye-witness is based on hearsay as there was no attempt made to identify the co-accused by the injured. It is further submitted that the applicant has no criminal antecedents and has been in jail since 22.02.2024. Thus in the aforesaid circumstances, the applicant is entitled to be released on bail.

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It is also urged that there is no possibility of the applicant of fleeing away after being released on bail or tampering with the witnesses. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail.

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It has also been submitted that the co-accused namely Vishram and Murari have already been enlarged on bail by this Court by means of the order dated 23.04.2024 passed in Criminal Misc. Bail Application No.4373 of 2024.

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Learned A.G.A., on the basis of material in the case diary available with him, has opposed the prayer for bail, however, could not dispute the aforesaid facts.

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Considering the rival submissions, the facts and circumstances of the case and the material available on record as well as considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.

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Let the applicant Banwari involved in the aforesaid FIR/Case Crime Number be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned.

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At the time of executing required sureties the following conditions shall be imposed in the interest of justice.

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(i) The applicant shall file an undertaking to the effect that he shall 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 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

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proceed against him under Section 229-A of the Indian Penal Code.

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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. is issued and the 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 of the Indian Penal Code.

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(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Order Date :- 30.5.2024 Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Banwari v. State of U.P. Thru. Prin. Secy. Home Deptt. Civil Sectt. Lko.

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Banwari v. State of U.P. Thru. Prin. Secy. Home Deptt. Civil Sectt. Lko.

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