Court No. - 73

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50386

of 2022

Applicant :- Avnish Kumar Upadhyay

Opposite Party :- State of U.P.

Counsel for Applicant :- Shashi Dhar Goswami,Pradeep

Kumar Rai

Counsel for Opposite Party :- G.A.

Hon'ble Siddharth,J.

Heard Shir Kamal Singh, learned Senior counsel assisted by

Shri Pradeep Kumar Rai, learned counsel for the applicant as

well as the learned AGA for the State and perused the material

placed on record.

The instant bail application has been filed on behalf of the

applicant, Avnish Kumar Upadhyay, with a prayer to release

him on bail in Case Crime No 161 of 2020 under Sections

302, 201, 404, 411 IPC, Police Station- Duddhi, District-

Sonbhadra, during pendency of trial.

This is the second bail application. The first bail application of

the applicant was rejected by coordinate bench of this court on

09.012.2021 which is not available now..

Learned counsel for the applicant has submitted that there are

20 witnesses detailed in the charge-sheet, but only 3 have been

examined. The informant has been examined as P.W.-1 who has

stated that the F.I.R. was dictated by the inspector and

whatever he said was written by him in the F.I.R. The counsel

for the applicant has further pointed out to the inquest report of

the deceased which was prepared prior to the lodging of F.I.R.

and it is stated therein that the deceased was a good person and

some unknown persons have caused murder of deceased. The

applicant has been falsely implicated in this case. He has no

criminal history to his credit and is languishing in jail since

16.07.2021. The trial in the aforesaid case is not likely to be

concluded in near future.

Per contra learned A.G.A. has 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, 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 char