While citing non- disclosure of a previous discharge application as a material fact , the Allahabad High Court has rejected Ankit Kumar Yadav’s second bail application who is charged of murder and concealment of evidence.
A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc Bail Application filed by Ankit Kumar Yadav.
This is second bail application filed on behalf of applicant who is facing trial in Case under Sections 302, 201 I.P.C, Police Station- Chilh, District- Mirzapur.
The first bail application of applicant was rejected by the Court on 14.09.2022 by a reasoned order. In the order, it was taken note that co-accused Radhey Shyam Yadav was granted bail by an order dated 08.07.2022.
The bail application was filed on 03.11.2022 i.e within less than 2 months after the first bail application was rejected.
In the application, averments are mostly on merit of the case and only subsequent event is that the applicant is in jail since 03.03.2022, however, till date even charges are not framed.
On direction of the Court, the Trial Court has submitted a status report that the case was referred to Additional Sessions Judge on 04.06.2022. Applicant and co-accused have filed applications for discharge which were dismissed on 02.03.2023 and thereafter charges were framed under Sections 302/34 and 201 I.P.C on same day.
Applicant has not disclosed that he has filed an application for discharge, therefore, the Trial Court could not be blamed for that no charge was framed. This is a suppression of a material fact.
It transpires from above referred facts that after the first bail application was rejected on 14.09.2022 and till the second bail application was filed on 03.11.2022, the trial could not proceed due to discharge applications filed by applicant and co- accused, therefore, there is no subsequent event to consider this bail application.
Counsel has submitted that aforesaid judgment is a subsequent event and if the recovery memo is tested with aforesaid law of preparation of a memo of recovery, the memo of the case shall have no legal bearing.
Sunil Srivastava, A.G.A for State submitted that since first bail application was dismissed on merit, therefore, consideration of a judgment would be akin to review the order which is not permissible and for that applicant has to challenge the order before Supreme Court and since there is no subsequent event for consideration, therefore, this second bail application may be rejected.
The Court noted that,
According to arrest memo/recovery, the applicant and co- accused were intercepted on a road and were arrested on spot. Both accused persons have narrated manner of crime and a hammer and phones were recovered from their motorcycle and on personal search, therefore, in case the procedure that statement of accused be recorded in presence of two witnesses at police station that they wanted to show the incriminating material does not require. They are not taken to police station.
The memo has disclosed the informant Arvind Yadav and uncle of deceased Vijay Kumar also reached at the place of arrest as well as on the spot of arrest the accused have stated that they can point out other incriminating items and the police party along with witnesses and accused persons went the place and incriminating items were recovered on their pointing out.
The Court said that,
However, in the case, testimony of I.O and witnesses of panch are still to be led before Trial Court, therefore, at this stage, it cannot be held that memo of recovery is not proved or it was prepared contrary to procedure prescribed if any, as well as I have already mentioned that prima facie, there is no illegality in the arrest memo/recovery memo even in view of judgment of Ramanand (supra) and other aspects will be considered by Trial Court on basis of evidence.
It is also relevant to mention here that coordinate Bench has observed that “recovery of vivo mobile phone” from applicant is false and planted and the same does not belong to deceased.
“However, it appears that it was an observation without consideration of any material on record, therefore, it has no legal consequence as well as role assigned to co-accused is of providing a hammer to applicant and causing disappearance of dead body, whereas role assigned to present applicant to cause multiple injuries to deceased.
In view of above, there is no subsequent event of fact or law which requires consideration of the Court in the second bail application”, the Court observed while rejecting the second bail application.