Indrajeet Singh vs State Of U.P.
2018 Latest Caselaw 659 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                          A.F.R.
 
Court No. - 48
 
Case :- CRIMINAL MISC. BAIL APPLICATION No.  4069 of 2018
 
Applicant :- Indrajeet Singh
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Swati Agrawal,Yash Tandon
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karuna Nand Bajpayee,J.

Supplementary affidavit filed on behalf of the applicant is taken on record.

This third bail application has been filed seeking the release of the applicant on bail in Case Crime No. 890 of 2013, under Section 307 I.P.C., Police Station Bhojipura, District Bareilly. The first and second bail applications were rejected by this Court on 13.1.2016 and 3.10.2016 on merits.

Heard learned counsel for the applicant and learned A.G.A.

Perused the record.

It appears that the first bail application was rejected by this Court after going into the merits of the case and in view of the audacity of the crime committed and the gravity involved in the charge the Court felt dissuaded to pass a favourable order. The second bail application also met with the same fate as there was hardly any such fresh grounds which could persuade this Court to change its view. However, it transpires from the earlier order passed on the second bail application that the failure of the prosecution to produce evidence for long had evoked an observation from the Court that in case the trial does not get concluded within a year from then, the applicant shall have the liberty to move another application for bail. Now during the course of hearing of this third bail application learned counsel for the applicant has sought to argue that despite the court's observation even though more than a year has elapsed since the second bail application was rejected, the trial has not yet concluded. The contention is that therefore, the Court should grant bail to the accused in deference to the aforesaid observation, which according to the learned counsel, is tantamount to an implied judicial promise. Though learned counsel for the applicant has been fair enough to admit that the trial has already commenced and some prosecution witness or witnesses have also been examined, but as the same has not been concluded therefore, according to counsel, the applicant deserves to be released on bail in the wake of aforesaid observation as the failure of the trial court to conclude the trial within a year despite directions is non compliance committed by the court below and should be taken as an affront against the dignity of this Court.

Learned AGA has opposed the prayer for bail and has submitted that first of all there is no record to suggest or confirm that the order dated 3.10.2016 expediting the trial was ever communicated to the trial court at all. Apart from this the complete copy of the order-sheet of the case up-to-date has not been filed on behalf of the applicant which could have given a clearer picture of proceedings of the trial and whatever copies of the order-sheet have been filed clearly show that a substantial period of time has got lost for the reason of absconding of some accused of this case and the efforts of the court made in this behalf in order to procure his attendance by issuing coercive measures. It has been further submitted that though such observation as aforesaid was made by this Court but that does not mean that in all such cases come what may at all cost the bail must be allowed regardless to its merits. According to him, this case stands on entirely different footing than the normal cases and is the one in which the accused is having a long criminal history and not less than 9 cases were registered against him. Emphasis was laid on the additional fact that in two of such criminal cases the applicant has already been convicted. Learned AGA has also pointed out that it was a case in which as a result of firing resorted to by the accused the police official had received firearm wounds and the projectile had to be removed from the victim's body by performing an operation and he had a close brush with death.

On being confronted with the aforesaid submission advanced on behalf of the State, learned counsel for the applicant could not dispute the factum of consecutive conviction recorded against the accused in two criminal cases but has only tried to make capital out of the Court's observation whereby the liberty to renew the prayer for bail was granted while rejecting the earlier bail application.

Ordinarily in such circumstances, this Court leans in favour of the accused and tends to set him at liberty if the trial has not been concluded despite court's directions. But such a criteria can not be applied as a straight jacket formula in a cut and dried manner without paying heed to the nature of offence and the nature of the offender both. In a matter like this in which the accused is having a long criminal history which too relates to different districts and States as has been pointed out by the learned AGA and where the applicant is a previous convict having already been held guilty in at least two criminal cases as has been admitted by applicant's counsel, the call of administration of justice dissuades this Court from releasing the applicant on bail. The factum of consecutive convictions as has been pointed out today was never brought to the notice of the court while passing earlier order whereby the said liberty was granted and it somehow escaped the courts attention. Thus when the same was brought to the notice of this Court, the Court felt impelled to re-assess and give a second look to the aforesaid observation relied upon by the counsel as was made by this Court earlier while rejecting the second bail. Perusal of the record now shows that the second criminal case in which the applicant has been held guilty, was registered as Case Crime No. 459 of 2013, under Sections 379 and 411 IPC and in this case conviction was recorded by the Court on 18.2.2014. While the averment made in paragraph 26 of the affidavit filed along with second bail application shows that this case was shown as pending till then. This was manifestly a misleading averment as the conviction in this case had already been recorded by then. Relevant portion of paragraph 26 of the affidavit reads as follows:-

" In Case Crime No. 459 of 2013, under Sections 379,411 IPC, Police Station Rudrapur, District Udham Singh Nagar (Uttarakhand)., the prosecution has shown a recovery of motorcycle from the possession of applicant. This case is pending."

The least which may be said in this regard is that the accused had not come-up with clean hands. Be that as it may, this Court is constrained to observe that had it been a simple case with no abnormal circumstances, there would have been no reason for this Court not to give advantage to the accused on the basis of such observation. But the present case has some very serious contours which this Court cannot afford to ignore. The police official on duty was shot at by the accused side causing him serious firearm injury and the victim's survival appears to be just a fortuitous act of Providence while he got a narrow escape and had a close shave with death. It would be apt to recapitulate the relevant part of the order passed by this Court while rejecting the first bail application which reads as follows.

".............this is a case in which the police party was intercepting a gang of miscreants who indulged in criminal activities of vehicle lifting and it was in that connection that when the applicant Indrajeet was caught and apprehended by the police the other co-accused persons along with applicant indulged in manhandling the police party which caught hold of the applicant who, in order to wriggle out from the grip, picked out his pistol and shot at the policemen which resulted in firearm wound received by the constable Amit Yadav. Learned A.G.A. also drew the attention of the Court to the papers regarding medical examination of the victim and also the operation-notes made by the hospital authorities of Shri Ram Murti Smarak Institute of Medical Sciences, Bareilly indicating that the foreign body i.e. (the projectile) was removed from the victim's body by performing operation. Learned A.G.A. has further pointed out that the applicant is a history sheeter and not less than nine criminal cases had been registered against him. Learned A.G.A. has also placed reliance upon a recent Apex Court's decision given in the case of Neeru Yadav Vs. State of U.P. and another, delivered on 29.9.2015 in Criminal Appeal No. 1272 of 2015 in order to emphasize that at the time of considering bail application the criminal history of an accused is a relevant aspect of consideration and the Court must not loose the sight of the same while deciding on the point of bail. Further submission is that the facts and circumstances of the case indicate that it is not a case of ordinary assault but the very authority of law and order enforcing agency has been challenged in a daredevil manner and the act of firing at the police personnel is an audacious act of criminality which does not call for any liberal view in the matter. The police personnel has received gun shot for the only fault that he was doing his duty."

It needs no further elaboration on the point that there is strong prima facie evidence available on record against the accused.

It also goes without saying that the Judges of the High Court are not like Knight Errants who may act and move at will as they please or may act and conduct themselves in any capricious manner simply catering to their individual sense of honour. If a particular direction to conclude the trial within a certain period could not be met with by the trial court under certain circumstances, it may raise several questions and concerns about the working conditions, constraints and culture prevalent in the existing system which may be probed into independently, but the same should not always be construed as any deliberate slight inflicted upon the judicial majesty of this Court. Nor can this Court allow itself to be over-reactive and act, as if in vengeance, and rush to pass order in favour or against any party under the provocation of some injudicious impulse emanating from its supposedly flouted judicial vanity. This Court cannot afford to be anything but judicious and while passing any order the lone and avowed object before it has to be only to strike the chord of objective justice. The rights of some victim are no less important than those of the accused and the Court can not be oblivious to the need of striking a balance between the liberty of the accused and the call of social defence. Granting bail to the accused is not any largess to be conferred by the Judge in exercise of some feudal prerogative. It is to the contrary a judicious act which has got to be performed with utmost discreetness by a Judge in exercise of its judicial function and must accord itself to the facts and circumstances of each case which may vary infinitely.

Moreover, the Court is also conscious of the fact that as the matter is now within the realm of the trial court, any detailed finding on the basis of evidence produced in the court is quite likely to cause prejudice to independent dispassionate judgment of the trial court which may be detrimental to either side. It is now for the trial court to analyze, weigh and appreciate the evidence and adjudicate upon point of guilt or innocence of the accused. So keeping in view the totality of the facts and circumstances of the case, the gravity of the offence, the evidence available in support of the charge, the criminal antecedents of the accused-applicant, and specially keeping in perspective the two judicial verdicts of conviction recorded against the accused, this Court does not feel inclined to unclip the wings of applicant's liberty despite the aforesaid observation made in earlier bail rejection order.

The third bail application of the applicant therefore, stands rejected.

Order Date :- 18.5.2018

CPP/-