Court No. - 73

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3678 of 2023

Applicant :- Makhan Urf Upendra

Opposite Party :- State of U.P.

Counsel for Applicant :- Alok Kumar Rai

Counsel for Opposite Party :- G.A.,Hari Narayan Singh

Hon'ble Siddharth,J.

Heard learned counsel for the applicant; Sri Hari Narayan Singh,

learned counsel for the informant; learned AGA for the State and

perused the material placed on record.

The instant bail application has been filed on behalf of the applicant,

Makhan Urf Upendra, with a prayer to release him on bail in Case

Crime No. 658 of 2022, under Sections 147, 148, 149, 302, 34 IPC,

Police Station Khorabar, District- Gorakhpur, during pendency of

trial.

Initially FIR was lodged against two named and some unknown

accused persons under Section 302 IPC. Subsequently applicant and

other co-accused persons have been implicated in this case under

Sections 147, 148, 149, 302, 34 IPC.

Learned counsel for the applicant has submitted that general role of

causing injuries by lathi, danda and rod has been assigned to the

applicant. He has been falsely implicated in this case due to ulterior

motives. He has criminal history of one case explained in bail

application and is languishing in jail since 22.11.2022. In case, the

applicant is released on bail, he will not misuse the liberty of bail.

Per contra learned A.G.A. and learned counsel for the informant have

vehemently opposed the prayer for bail of the applicant by contending

that the innocence of the applicant cannot be adjudged at pre trial

stage, therefore, he does not deserves any indulgence. In case the

applicant is released on bail he will again indulge in similar activities

and will misuse the liberty of bail.

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; larger

mandate of the Article 21 of the Constitution of India, considering the

dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I.

& Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement

dated 11.7.2022 and considering 5-6 times overcrowding in jails over

and above their capacity by under trials 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 :-

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

witnesses.

(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.

(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.

(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.

(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 Section 313 Cr.P.C. If in the