Dismissed

Kanhaiya Awasthi v. State of U.P. Thru. Its Addl. Secy. Home, Lucknow

Allahabad HC13 Feb 2024BAIL/1545/2024

Case brief

AI extract

What is this about?

Third bail application in a murder case under Sections 147, 148, 302 IPC. Trial near completion with 14 of 18 witnesses examined. Court found the applicant's prior conviction under Section 324 IPC and fresh involvement during probation negated parity; bail rejected.

What the court decided

AI extract

Kanhaiya Awasthi vs State of U.P. Thru. Its Addl. Secy… — Bail and Remand | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:31734

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Court No. - 8

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1545 of 2024

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Applicant :- Kanhaiya Awasthi Opposite Party :- State Of U.P. Thru. Its Addl. Secy. Home, Lucknow

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Counsel for Applicant :- Ravi Singh,Raghvendra Singh Counsel for Opposite Party :- G.A.,B M Sahai

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Hon'ble Rajeev Singh,J.

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Heard learned counsel for the applicant, Shri Piyush Kumar Singh, learned A.G.A., Mohd. Gulam Mustafa, who appears on behalf of the complainant and perused the record.

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The instant bail application has been filed on behalf of the applicant with a prayer to enlarge him on bail in Case Crime No. 188 of 2020 under Sections 147, 148, 149, 302, 120-B, 34 I.P.C. and 7 Criminal Law Amendment Act, Police StationGangaghat, District- Unnao.

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Learned counsel for the applicant submits that the applicant has falsely been implicated in the present case as there is no evidence against him. He further submits that this is third bail application and first bail application of the applicant was rejected by this Court vide order dated 08.10.2021 passed in Bail Application No. 11009 of 2020, thereafter, second bail application i.e. Crl. Misc. Bail Application No. 8774 of 2022 was filed and the same was also rejected vide order dated 02.12.2022 with the direction to the trial court to conclude the trial of the case in question within a period of one year from the date of service of that order, without giving any unnecessary adjournments to either of the parties and Superintendent of Police, Unnao was also directed to ensure the presence of witnesses before the trial court.

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Further submission of learned counsel for the applicant is that till today, trial has not been concluded as 14 witnesses have been examined out of 18 witnesses and all the witnesses of fact have been examined and there is no possibility of tempering of any evidence. He further submits that P.W.- 03 and P.W.- 04, namely, Raj Kumar and Mohit Shukla respectively have been claimed by prosecution as eye-witness of the incident but in their deposition before the trial court, they did not speak that the applicant was present at the place of incident. He further

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submits that aforesaid first bail application of the applicant was rejected on the ground that detail of the criminal antecedent was not properly explained. He further submits that the applicant is aged about 45 years and criminal antecedents are explained in paragraph no. 51 of the affidavit filed in support of this third bail application. He further submits that father of the applicant was murdered on 01.05.2013, thereafter, he was implicated in the cases by rivals only with the intention to harass him and he has been implicated in 13 cases till today and in 04 cases, final report has been submitted by the Investigating Officer, out of which, he has been convicted in 01 case for the offense under Section 324 I.P.C., in that case, he has been released on probation and he is on bail in rest of the cases.

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Further submission of learned counsel for the applicant is that as per the prosecution case, three persons are identified as shooter, namely, Monu Khan alias Monu Lutera, Tipu and Shanu and they have been enlarged on bail by this Court, and other persons against whom allegation of conspiracy is alleged are Santosh Bajpayee, Abdul Bari, Vikash Dixit, Shahnawaz Bihari and Afsar Ahmad, who have also been enlarged on bail. He also submits that the applicant is in jail since 29.06.2020 and he is ready to cooperate in the trial and only formal witnesses are to be examined before the trial court, hence, he may be enlarged on bail.

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Learned A.G.A. as well as learned counsel for the complainant vehemently opposes the prayer of the applicant. They jointly submit that the applicant is already convicted in S.T. No. 478 of 2007 and he was allowed on probation vide judgement and order dated 07.07.2018, thereafter, his involvement was found in cases i.e. Case Crime No. 765 of 2018 under Sections 447, 504 I.P.C. and Case Crime No. 702 of 2019 under Sections 147, 148, 352, 504, 506 I.P.C., in both the cases, charge-sheet has been filed and he is on bail in those cases. Learned A.G.A. further submits that the applicant misused the liberty of probation, therefore, he is not entitled for bail.

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Considering the submissions of learned counsel for the applicant, learned counsel for the complainant, learned A.G.A. and going through the contents of the instant bail application, deposition of the witnesses as well as other relevant enclosures; it is evident that 14 witnesses have already been examined out of 18 witnesses and the applicant was convicted under Section 324 I.P.C. vide judgement and order dated 07.07.2018 by which benefit of probation was given to him. It is further evident from paragraph no. 51 of the affidavit filed in support of this third bail application that within one year after probation, the

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applicant's involvement was found in 02 other cases. The applicant is already convicted in one case and during the course of probation, his involvement was found in some criminal cases, therefore, the claim of parity is not applicable in the case of the applicant.

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Subject to above, the bail application is rejected .

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Order Date :- 23.4.2024 Arpan

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

Kanhaiya Awasthi v. State of U.P. Thru. Its Addl. Secy. Home, Lucknow

Case brief

What is this about?

What the court decided

Kanhaiya Awasthi v. State of U.P. Thru. Its Addl. Secy. Home, Lucknow

Case brief

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What the court decided

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