Point of Law: Criminal history of an accused in itself cannot be the basis of refusal of prayer for bail.

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 i