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2021 DIGILAW 1341 (ALL)

Uday Pratap @ Dau v. State of U. P.

2021-11-12

SAMIT GOPAL

body2021
JUDGMENT : SAMIT GOPAL, J. 1. Heard Sri. Anil Kumar Srivastava, learned Senior Advocate assisted by Sri. Gaurav Singh Chauhan, learned counsel for the applicant and Sri. Pankaj Mishra, learned brief holder for the State and perused the material on record. 2. This is the second bail application under Section 439 of Code of Criminal Procedure filed by the applicant Uday Pratap @ Dau, seeking enlargement on bail during trial in connection with Case Crime No. 12 of 2020, under Sections 364, 302, 201, 120B, 34 I.P.C. registered at P.S. Phareeha, District Firozabad. 3. The first bail application of the applicant being Criminal Misc. Bail Application No. 43160 of 2020 (Uday Pratap @ Dau vs. State of U.P.) has been rejected by this Court vide order dated 14.12.2020, copy of which has been annexed as annexure no. 1 to the affidavit in support of bail application. The said order is quoted herein-below: “1. Heard Sri. Satendra Singh, learned counsel for the applicant, Sri. Satya Narayan Yadav, learned counsel for the informant, Sri. Prabhash Pandey, learned Brief Holder for the State and perused the material on record. 2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Uday Pratap @ Dau, seeking enlargement on bail during trial in connection with Case Crime No. 12 of 2020, under Sections 364, 302, 201, 120B and 34 I.P.C., registered at P.S. Phareeha, District Firozabad. 3. Learned counsel for the applicant argued that the present case is a case of circumstantial evidence. It is argued that Pradeep Yadav @ Kaloo who is the son of the first informant, went away from the house 31.1.2020 at about 7.00 P.M. and since then went missing. It is further argued that the first information report of the present case was lodged after a great delay as was lodged on 5.2.2020 by Rajveer Singh the father of Pradeep Yadav @ Kaloo. Learned counsel for the applicant further argued that the applicant is not named in the F.I.R. and during the course of search the first informant sent his younger son Dinesh to know regarding whereabouts of Pradeep Yadav @ Kaloo on which Dinesh came back to home and informed that Sunil Chauhan the owner of motorcycle agency, Rajveer Singh @ Singhania, Tej Prakash and 2-3 other unknown persons were sitting at Honda Motorcycle Agency, Fariha, Firozabad and consuming liquor. On seeing this Dinesh came back to home but Pradeep Yadav @ Kaloo did not return back. It is argued that the first informant states that he went to the police station to given information about missing of his son, in consequence of which the police went to see the C.C.T.V. footage installed near the agency where the said persons were consuming liquor and saw that his son was seen going out at about 08.08 P.M. along with Sunil Chauhan. It is argued that in the statement of the first informant recorded under Section 161Cr.P.C. copy of which has been annexed as annexure no. 2 to the affidavit filed in support of bail application, he has stated the same version as that mentioned in the First Information Report. It is argued that subsequently co-accused Tej Pratap was arrested and he gave his confessional statement to the police and also named the applicant therein. Copy of the said statement has been placed before the Court which is annexed as annexure no. 5 to the affidavit. 4. It is then argued that later on the applicant was arrested on 18.3.2020 and one knife and Rs. 190/- were recovered from him. Learned counsel has placed post mortem report of the deceased and has argued that the doctor could not ascertain the cause of death and as such viscera was preserved. The viscera was chemically examined and the report is annexed as annexure no. 10 to the affidavit, from which it transpires that it contained Organo Chloro insecticide and Ethyl Alcohol poison. Learned counsel for the applicant argued that in so far as the applicant is concerned, he is not named in the F.I.R. his implication has surfaced for the first time in the statement of co-accused persons and there is no recovery of any incriminating material either from pointing out or possession of the applicant. Learned counsel has placed para-30 of the affidavit filed in support of bail application and has argued that the applicant has no criminal history which reads as follows: “(30) That it is categorically submitted here that accused applicant is not having any criminal history in the record of police nor he is a previously convicted person in other words accused applicant is a man of clean antecedents and he is not indulged in any anti-social activities.” 5. Per contra, learned brief holder for the State and learned counsel for the first informant vehemently opposed the prayer for bail. It is argued while placing the relevant transcript of C.C.T.V. footage that the applicant was also seen moving out from the place where the deceased and other co-accused persons were consuming liquor. The applicant was also seen together with the deceased having liquor by Dinesh, the younger brother of the deceased which is mentioned specifically in the First Information Report and in the statement of the first informant recorded under Section 161 Cr.P.C. It is argued that all the accused persons in a clandestine manner gave poisonous substance to the deceased as a result of which he died, which also gets fortified from the report of chemical analyst from which poison has been found in the viscera. 6. Learned A.G.A. while refuting the averment of criminal antecedents of the applicant, has argued that the said averment is a false averment made in the affidavit filed in support of bail application. He has argued that the applicant is involved in seven other criminal cases and even history sheet has been opened. The details of involvement of the applicant in seven other criminal cases have been placed before the Court which are as follows: (i) Case Crime No. 1072 of 2015, under Sections 147, 148, 149, 307, 332, 353, 334 I.P.C. and 336 Public Representative Act, P.S. Narkhi, District Firozabad. (ii) Case Crime No. 917 of 2017, under Sections 60 Excise Act and 420 I.P.C. and P.S. Narkhi, District Firozabad. (iii) Case Crime No. 472 of 2018, under Sections 8/20 N.D.P.S. Act, P.S. Narkhi, District Firozabad. (iv) Case Crime No. 616 of 2018, under Sections 147, 148, 149, 307, 323, 324, 504, 506, 323 I.P.C. and P.S. Narkhi, District Firozabad. (v) Case Crime No. 651 of 2018, under Sections 147, 148, 149, 307, 323, 324, 504, 506, 326 I.P.C. and P.S. Narkhi, District Firozabad. (vi) Case Crime No. 140 of 2020, under Section 2/3 Gangster Act, P.S. Fariha, District Firozabad. (vii) Case Crime No. 196 of 2020, under Sections 4/25 Arms Act, P.S. Aitmadaula, District Agra. 7. After having heard learned counsels for the parties and perusing the records it is apparent that criminal antecedents of the applicant have not been disclosed. (vi) Case Crime No. 140 of 2020, under Section 2/3 Gangster Act, P.S. Fariha, District Firozabad. (vii) Case Crime No. 196 of 2020, under Sections 4/25 Arms Act, P.S. Aitmadaula, District Agra. 7. After having heard learned counsels for the parties and perusing the records it is apparent that criminal antecedents of the applicant have not been disclosed. The affidavit in support of bail application is of no one else but Sauraj Singh, who claims himself to be the brother of the applicant. The C.C.T.V. as has been seen and a transcript has been drawn in the case diary is a piece of evidence which cannot be manufactured. The presence of the applicant at the place where the deceased was consuming liquor with the applicant and other co-accused persons shows conclusively they being last seen together. The report of Forensic Lab even shows that the viscera had Organo Chloro insecticide and Ethyl Alcohol poison. 8. Looking to the facts and circumstances of the case, the nature of evidence and gravity of offence and specially keeping in view of the fact that in the viscera report presence of Organo Chloro insecticide and Ethyl Alcohol poison was found and long criminal antecedents of the applicant, I do not think it to be a fit case to release the applicant on bail. 9. The bail application is rejected. 10. On the point of criminal history, this Court has perused the free copy of the order dated 24.9.2020 passed by the Additional Sessions Judge, Court No. 6, Firozabad in Bail Application No. 1403 of 2020, CNR No. UPFD03867-2020, Uday Pratap urf Dau vs. State of U.P. by which the bail application of the applicant has been rejected by the court below. The same is annexed as annexure no. 11 to the affidavit. The said order does not attend about the criminal history of the applicant. In the said order while mentioning the arguments as raised on behalf of the applicant, it has specifically been mentioned that the applicant is “not a previous convict.” There is no discussion by the court about the said argument in the order rejecting bail of the applicant. 11. Not only in this case but in many other cases it is seen that there is an averment made that the applicant/accused is not involved in any other criminal case before this Court. 11. Not only in this case but in many other cases it is seen that there is an averment made that the applicant/accused is not involved in any other criminal case before this Court. The order rejecting bail by the courts below is silent about the criminal antecedents of the applicant/accused but on the basis of instructions of learned Additional Government Advocate of this Court or on the basis of instruction of learned counsels for the first informant, it transpires that the applicant/accused has previous criminal history. When the learned counsels are countered with the same it becomes embarrassing for them and is also an impediment in deciding the said bail application due to the non-disclosure of the criminal history of the accused. Although the criminal antecedents of the accused are not the sole and decisive factor for decision of bail applications but the same needs to be considered while deciding an application for bail under Section 439 Cr.P.C. as per the legislative mandate of Section 437 Cr.P.C. 12. This Court directs the courts below in the State of Uttar Pradesh to attend the issue of criminal antecedents of accused persons while deciding bail applications under Section 439 Cr.P.C. and give a complete detail of the criminal antecedents, if any, of the applicants/accused before them or record the fact that there are no criminal antecedents of the said persons if there are none. 13. The Registrar General of this Court is directed to communicate this order to all the District and Sessions Judges of the State, who shall ensure the immediate implementation of this order by the courts in their jurisdiction. 14. The Registrar General shall ensure compliance of this order in its true spirit and submit a report of compliance before this Court by 29.1.2021. 15. List this case on 29.1.2021 for further orders. 16. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 17. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 18. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.” 4. 17. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 18. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.” 4. Learned counsel for the applicant argued that after rejection of the first bail application of the applicant, fresh and new grounds are as follows: (i) That there is a disclosure of all the nine cases which are reported as criminal history of the applicant and the same have been duly explained. The disclosures of the same are given in paragraph-5 and explanation are given from paragraph nos. 6 to 14 of the Supplementary Affidavit dated 03.09.2021. (ii) That the co-accused Rajveer @ Singhaniya, who is named as accused in the F.I.R. has been granted bail by a co-ordinate Bench of this Court vide order dated 23.2.2021 passed in Criminal Misc. Bail Application No. 47357 of 2020 (Rajveer @ Singhaniya vs. State of U.P.) copy of which is annexure no. 3 to the affidavit in support of bail application. (iii) That the co-accused Sunil Chauhan, who is also named in the F.I.R. has been granted bail by a co-ordinate Bench of this Court vide order dated 26.3.2021 passed in Criminal Misc. Bail Application No. 46919 of 2020 (Sunil Chauhan vs. State of U.P.). Copy of the said order has been produced before the Court, which is taken on record. (iv) That the co-accused Tej Prakash @ Chutalli, who is also named as accused in the F.I.R. has been granted bail by a co-ordinate Bench of this Court vide order dated 25.1.2021 passed in Criminal Misc. Bail Application No. 25710 of 2020 (Tej Prakash @ Chutalli vs. State of U.P.) copy of which is annexure no. 3 to the affidavit in support of bail application. (v) That the applicant is not named in the F.I.R. The case of the applicant stands on a better footing than the three co-accused who have been granted bail by co-ordinate Benches of this Court. 3 to the affidavit in support of bail application. (v) That the applicant is not named in the F.I.R. The case of the applicant stands on a better footing than the three co-accused who have been granted bail by co-ordinate Benches of this Court. (vi) Reliance has been placed on the case of Prabhakar Tewari vs. State of U.P. and Another, (2020) 11 SCC 648 and it has been argued that the Apex Court has held that the criminal history of an accused in itself cannot be the basis of refusal of prayer for bail. (vii) That investigation in the present matter has concluded and charges have been framed against the applicant Uday Pratap @ Dau, co-accused Sunil Chauhan and Rajveer @ Singhaniya, on 26.2.2021 and as such there are now no chances of the applicant not co-operating in the investigation or influencing the witnesses. (viii) That in all the cases in which the applicant is shown to be involved, he has been granted bail by the concerned courts except for Case Crime No. 196 of 2020, under Section 4/25 Arms Act. (ix) The applicant is in jail since 18.3.2020. 5. Per contra, learned State counsel opposed the prayer for bail and argued that the first bail of applicant was rejected after considering the fact that there was material concealment of criminal history and even on merits but he could not dispute the fact that three co-accused persons who are named in the F.I.R. have been granted bail by co-ordinate Benches of this Court subsequent to rejection of the bail of the applicant. 6. After having heard learned counsels for the parties and perusing the record, it is evident that the criminal history of the applicant is duly disclosed and explained in the supplementary affidavit and further, three co-accused namely Rajveer @ Singhaniya, Sunil Chauhan and Tej Prakash @ Chutalli who are named in the F.I.R. have been granted bail subsequent to rejection of the first bail application of the applicant. The applicant is not named in the F.I.R. 7. Looking to the facts and circumstances of the case and bail granted to the co-accused who are named in the F.I.R. this Court is of the view that the applicant may be enlarged on bail. 8. The applicant is not named in the F.I.R. 7. Looking to the facts and circumstances of the case and bail granted to the co-accused who are named in the F.I.R. this Court is of the view that the applicant may be enlarged on bail. 8. Let the applicant-Uday Pratap @ Dau, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice: (i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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. may be issued and if 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 I.P.C. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. 9. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. 9. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. 10. The bail application is allowed.