Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36523 of 2024 Applicant :- Lavkush Dhaikar Opposite Party :- State of U.P. Counsel for Applicant :- Harish Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Harish Kumar Mishra, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. This repeat application for bail has been filed by applicant-Lavkush Dhaikar seeking his enlargement on bail in Case Crime No. 274 of 2022, under Sections 364, 302, 201, 120-B/34 IPC, Police Station-Kaundhiyara, District-Prayagraj, during the pendency of trial i.e. Sessions Trial No. 158 of 2023 (State Vs. Lavkush Dhaikar), under Sections 364, 302, 201, 120-B/34 IPC, Police Station-Kaundhiyara, District-Prayagraj, now pending in the Court of Special Judge (SC/ST Act), Allahabad.

4. The first bail application of applicant-Lavkush Dhaikar was rejected by this Court by a detailed over dated 03.10.2023 passed in Criminal Misc. Bail Application No. 35349 of 2023 (Shyamdhar Dhaikar Vs. State of U.P.) decided along with Criminal Misc. Bail Application No. 38737 of 2023 (Lavkush Dhaikar Vs. State of U.P.) and Criminal Appeal No. 8604 of 2023 (Ayodhya Prasad Prajapati Vs. State of U.P. and Another). For ready reference, the order dated 03.10.2023 is reproduced herein under:-"Heard Mr. Harish Kumar Mishra, the learned counsel for applicant-Shyamdhar Dhaikar, Mr. Pushpendra, Advocate, holding brief of Mohd. Shahibe Alam, the learned counsel for applicant- Lavkush Dhaikar, Mr. Kamlesh Prasad, the learned counsel for applicant/appellant- Ayodhya Prasad Prajapati, the learned A.G.A. for State and Mr. Buddhi Prakash, the learned counsel for first informant. Perused the record. These two applications for bail have been filed by applicants-Shyamdhar Dhaikar and Lavkush Dhaikar and whereas the criminal appeal has been filed by applicant-Ayodhya Prasad Prajapati seeking their enlargement on bail in Case Crime No. 274 of 2022, under section 364, 302, 201, 120B/34 IPC, Police Station- Kaundhiyara, District Prayagraj during the pendency of trial..

Learned counsel for applicants submits that applicant-Lavkush Dhaikar is named in the F.I.R, whereas Shyamdhar Dhaikar and Ayodhya Prasad Prajapati are not named in the F.I.R. Their complicity has come in confessional statement. However, upto this stage, neither there is any evidence of last seen nor any recovery has been made from aforesaid applicants. Case of applicants- Shyamdhar Dhaikar and Ayodhya Prasad Prajapati are similar and identical to co-accused Tarakant Mishra, Ashok Kumar Dhaikar @ Shukul, Shivam Dwivedi who have already been enlarged on bail. Photo-copies of the said order is placed before Court, which are taken on record. The details of the same are as under: (1) Criminal Misc. Bail Application No. 13732 of 2023 (Shivam Dwivedi Vs. State of U.P.), decided on 16.8.2023. (2) Criminal Misc. Bail Application No. 35083 of 2023 (Ashok Kumar Dhaikar @ Shukul Vs. State of U.P.), decided on 21.8.2023. (3) Criminal Appeal No. 6879 of 2023 (Tarakant Mishra Vs. State of U.P.), decided on 22.8.2023.

On the aforesaid premise, learned counsel for appellant contends that case of present applicant is similar and identical to that of aforesaid co-accused. There is no such distinguishing feature on the basis of which case of present applicants- Shyamdhar Dhaikar and Ayodhya Prasad Prajapati can be so distinguished from aforesaid co-accused so as to deny bail to Shyamdhar Dhaikar and Ayodhya Prasad Prajapati. It is thus contended that for the facts noticed above and for the facts and reasons recorded in the above bail orders, applicants-Shyamdhar Dhaikar and Ayodhya Prasad Prajapati are also liable to be enlarged on bail on the ground of parity. With regard to applicant- Lavkush Dhaikar, learned counsel for appellant contends that appellant is named and charge-sheeted accused, yet he is liable to be enlarged on bail. Appellant is innocent. The present criminal proceedings have been engineered on account of counter blast to the proceedings initiated by appellant against first informant by way of F.I.R. dated 21.12.2022. Copy of the said F.I.R. is on record at page 80 of the paper book. On the above premise, he contends that appellant Lavkush Dhaikar is liable to be enlarged on bail.

Even otherwise, applicants/appellants are men of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicant- Shyamdhar Dhaikar is in jail since 29.12.2022. Applicant-Lavkush Dhaikar is in jail since 25.12.2022 and applicant- Ayodhya Prasad Prajapati is in jail since 26.12.2022. As such, they have undergone sufficient period of incarceration. Police report in terms of Section 173 (2) Cr.P.C i.e. charge-sheet has been submitted. As such the entire evidence sought to be relied upon by prosecution stands crystalized. However, upto this stage, no such circumstance has emerged necessitating custodial arrest of applicant. It is thus urged that applicants/appellant are liable to be enlarged on bail. In case the applicants/appellant are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with trial. Per contra, the learned A.G.A. and learned counsel for first informant have as opposed the prayer for bail. In respect of applicant- Lavkush Dhaikar, learned A.G.A. submits that he is a named and charge sheeted accused, therefore, his case is clearly distinguishable from applicants- Shyamdhar Dhaikar and Ayodhya Prasad Prajapati. Specific role has been assigned to applicant Lavkush Dhaikar. In view of the fact that specific allegations have been made and subsequently, body of deceased was also recovered, therefore, prima facie allegations made in the F.I.R. appear to be correct. Innocence of the applicant/appellant can not been inferred. More over the disputed defence can more appropriately be examined during the course of trial. However, they could not dislodge the factual and legal submissions urged by learned counsel for applicants, with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicants/appellant, accusation made coupled with the fact that case of applicants- Shyamdhar Dhaikar and Ayodhya Prasad Prajapati are similar and identical to bailed out co-accused, the period of incarceration undergone, the Police Report in terms of Section 173(2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant remains crystalized yet the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance from the record, necessitating the custodial arrest of applicants/appellant during the pendency of trial, therefore irrespective of the objections raised by the learned A.G.A. and the learned counsel for first informant in opposition to the bail application, but without making any comment on the merits of the case, the applicants- Shyamdhar Dhaikar and Ayodhya Prasad Prajapati have made out a case for bail. Accordingly the bail applications of applicants- Shyamdhar Dhaikar and Ayodhya Prasad Prajapati are allowed.

Let the applicants Shyamdhar Dhaikar and Ayodhya Prasad Prajapati 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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. (ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

However, with regard to bail application of applicant- Lavkush Dhaikar, applicant is named and charge-sheeted accused. Specific role has been assigned for kidnapping the deceased, subsequent to the act of kidnapping, the dead body of deceased was recovered, the innocence of applicant-Lavkush Dhaikar cannot be inferred merely on the basis of submissions urged by learned counsel for applicant that present criminal proceedings have been engineered as a counter blast to the criminal proceedings already initiated by applicant, the disputed defence of applicant can more appropriately be examined during the pendency of trial therefore irrespective of the submissions urged by the learned counsel for applicant, this Court does not find any good ground to enlarge the applicant- Lavkush Dhaikar on bail. Application for bail in respect of applicant- Lavkush Dhaikar therefore fails and is liable to be rejected. It is accordingly rejected."

5. Learned counsel for applicant submits that though applicant is a named and charge sheet accused yet he is liable to be enlarged on bail. Applicant is in jail since 24.12.2022. As such, he has undergone almost 2 years of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted against applicant and other accused. Therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record, necessitating the custodial arrest of applicant during the pendency of trial. Since offence complained of is triable exclusively by the Court of Sessions, consequently, the Jurisdictional Magistrate committed the case to the Court of Sessions. Resultantly, aforementioned Sessions Trial came to be registered. Charges were framed against applicant on 31.05.2024. However, no witness has deposed before Court below as yet. He, therefore, contends that the prosecution itself is not pursuing the trial diligently. At this juncture, the learned counsel for applicant further contended that right to speedy trial is now recognized as fundamental right of an accused. Since the aforesaid fundamental right of applicant stands infringed on account of lackadaisical approach of the prosecution in pursuing the trial, therefore, applicant is liable to be enlarged on bail. On the above premise, he, therefore, submits that present repeat application for bail is liable to be allowed.

6. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. On the above premise, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail during the pendency of trial. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. 7. Per contra, the learned A.G.A. for State hasvehemently opposed the present repeat application for bail. Learned A.G.A. contends that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Considering the nature and gravity of offence and also the period of punishment provided for the same, no sympathy be shown by this Court in favour of applicant. It is also contended by the learned A.G.A. that in view of above, the period of incarceration undergone by applicant is by itself not so sufficient a circumstance so as to enlarge the applicant on bail. The deceased was initially kidnapped by applicant and thereafter, put to death. The dead body of deceased was recovered on the pointing of applicant. On the cumulative strength of above, the learned A.G.A. contends that no new, good or sufficient ground has emerged on record so as to enlarge the applicant on bail. As such, the present repeat application for bail is liable to be rejected.

8. When confronted with above, the learned counsel for applicant could not overcome the same. 9. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that since the objections raised by the learned A.G.A. in opposition to the present repeat application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present repeat application for bail, but without making any comments on the merits of the case, this Court does not find any new, good or sufficient ground so as to enlarge the applicant on bail. 10. As a result, the present repeat application for bail fails and is liable to be rejected. 11. It is, accordingly, rejected. Order Date :- 13.11.2024 Vinay Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad