Harjeet Yadav Vs State of U.P. Thru. Prin. Secy. Home Lko.

Neutral Citation No. - 2024:AHC-LKO:76143

Court No. - 32

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 612 of 2023

Applicant :- Harjeet Yadav Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Rakesh Kumar Chaudhary,Ayush Chaudhary,Harsh Vardhan Kediya,Nadeem Murtaza,Prabhat Kumar Mishra

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Counsel for Opposite Party :- G.A.,Alok Kumar Mishra,Prateek Tewari,Ratan Gupta,Veer Bahadur Lal Srivasta

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Hon'ble Siddharth,J.

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Heard Sri Nadeem Murtaza, learned counsel for the applicant; Sri Prateek Tewari, learned counsel for the informant; learned AGA for State and perused the material placed on record.

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The instant bail application has been filed on behalf of the applicant, Harjeet Yadav, with a prayer to release him on bail in Case Crime No. 0016/2021, under Sections 34 and 302 IPC, Police Station -Para. District- Lucknow, during pendency of trial.

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Earlier bail was granted to the applicant by the order dated 22.10.2021 on the basis of parity of role with coaccused, Sushil Kumar Yadav.

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Bail of co-accused, Sushil Kumar Yadav, was not challenged while bail granted to the applicant was challenged by the informant before the Apex Court and it was set aside by the Apex Court in Criminal Appeal No.861 of 2022 (arising out of S.L.P. (Crl.) No.9655 of 2021) on the following grounds:-

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" 36. A bare perusal of the impugned order reveals that the High Court has failed to take into consideration the following:-

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(i) Respondent No.2/Accused has been named in the FIR bearing Crime Case No. 16/2021 lodged under Sections 302 and 34 IPC and was the main assailant who had a weapon in his hand.

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(ii) The main role of Respondent No.2/Accused was that he opened fire at the deceased due to which the bullet hit his right cheek and made its exit through the other side.

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(iii) The deceased succumbed to his injuries on 14.01.2021  Respondent No.2/Accused had the intention to murder the deceased as there was previous enmity between him and the deceased with regard to some land which Respondent No.2 threatened to grab.

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(iv) On being asked about the incident by the Appellant/Informant’s mother, the deceased replied “Ratipal ka dusra number ka ladka aur ram asre ka putra Sushil Yadav ne pull par gaadi rukwakar goli maar di hai or unke sath 2 ladke aur the”. On re-clarifying, the deceased replied “Ratipal ka dusra number ka ladka matlab Harjeet Yadav”.

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(v) Respondent No.2/accused has clearly been named by the deceased and he was actively involved in opening fire which caused the death of the deceased.

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(vi) Respondent No. 2/Accused’s statement was recorded by the then IO under Section 161 Cr.P.C in which he admitted to having committed the offence.

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(vii)Respondent No. 2 has a criminal history and several criminal matters have been lodged against him:

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(1) Case Crime no. 016/2021 u/s 302/34 IPC

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(2) Case Crime no. 020/2021 u/s 25 of the Arms Act

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(3) Proceedings of 110G on 05.11.2021

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(4) Beat Information (G.D No. 33) dated 18.12.2021

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(5) Beat Information (G.D. No. 44) dated 19.12.2021 "

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Learned counsel for the applicant has submitted that now before the trial court P.W.-1, the son of the deceased and P.W.-2, the wife of the deceased, have been examined. In his statement before the trial court P.W.-1 has stated that his father was lying on the strecher in the trauma centre when he alongwith his mother reached there. His father informed his mother (P.W.-2) that the applicant, Harjeet Yadav, and also co-accused, Sushil Yadav, stopped his car and fired on him. Two other persons were also with them. P.W.-2 has stated before the trial court that her husband (deceased) informed her that the applicant fired on him and then again informed that co-accused, Sushil Kumar Yadav, fired on him. She has further stated that she could not hear correctly for the first time and on the second time deceased informed that

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the applicant fired on him.

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He has pointed out to the statement of the investigating officer of the case, Sub-inspector, Ashok Kumar Singh, recorded under section 161 Cr.P.C., wherein he has stated that the deceased was lying injured in his car and blood was oozing from his neck. He was crying with pain and when his wife asked him how the incident took place, he said something to his wife in local dialect which he could not understand, thereafter, P.W.-1, went to the police station and lodged the F.I.R. The applicant is languishing in jail since 27.05.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail. Apex Court has granted liberty to file fresh bail application at later stage under new circumstances.

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Learned A.G.A. and learned counsel for informant have vehemently opposed the prayer for bail of the applicant and have submitted that earlier bail was obtained by the applicant without disclosing his criminal history. The applicant is main assailant and, therefore, he is not entitled to enlarged on bail. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.

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This Court finds that it is a case of single injury and two named and two unnamed accused have been implicated. The applicant is in jail since 27.05.2022. The criminal history of the applicant mentioned in the order of the Hon'ble Supreme Court consists of firstly the present case. The next case is under section 25 of Arms Act which is related to the recovery of arms in the present case. The third case is under section 110(G) Cr.P.C., which is not considered as part of criminal history like the fourth and fifth case since they are only beat reports. Before the trial court eight out of twenty one prosecution witnesses, have only been examined. Apex Court cancelled the bail granted to the applicant vide its order dated 20.05.2022. This Court has considered part of the evidence led by prosecution before the trial court. Finding on the evidence lead before the trial court is not required at this stage since it may affect the merit of the trial. This is the first implication of the applicant in the case of heinous offence and the criminal history of the applicant pointed out before the Apex Court by prosecution cannot be considered to be such which comes in the way of grant of bail to the applicant. Trial will take time to conclude.There is

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also no possibility of tampering with the prosecution evidence since statements of vital witnesses of fact have already been recorded.

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Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and considering 5-6 times overcrowding in jails over and above their capacity by under trials in the State of U.P. and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime 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 with the following conditions that :-

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(i) The applicant shall not tamper with the evidence or threaten the witnesses.

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(ii) 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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(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

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(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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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(v) 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

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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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Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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Order Date :- 19.11.2024 Abhishek

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Digitally signed by :- ABHISHEK YADAV High Court of Judicature at Allahabad, Lucknow Bench

Harjeet Yadav v. State of U.P. Thru. Prin. Secy. Home Lko.

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Harjeet Yadav v. State of U.P. Thru. Prin. Secy. Home Lko.

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