Mohan Shyam vs State Of U.P.
2021 Latest Caselaw 1044 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46273 of 2020
 
Applicant :- Mohan Shyam
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pankaj Kumar Shukla
 
Counsel for Opposite Party :- G.A.,Sandeep Kumar
 

 
Hon'ble Rahul Chaturvedi,J.

Supplementary affidavit filed on behalf of applicant, taken on record.

Heard Shri Pankaj Kumar Shukla, learned counsel for the applicant, Shri Amit Daga, Advocate assisted by Shri Sandeep Kumar, learned counsel for the informant and learned A.G.A. Perused the record.

By means of the present bail application the applicant, who is facing prosecution in connection with Case Crime No.179 of 2019, u/s 147, 307, 504, 506, 306 I.P.C., P.S.-Surir, District-Mathura, is seeking his enlargement on bail during trial. The applicant is an elderly person of 75 years and is in jail since 03.10.2019.

Text of the F.I.R. is that on 23.8.2019 at 15.30 hours all the named accused i.e. Satyapal, Bablu, Than Singh, Shibbo and the applicant Mohan Shyam armed with lathi, danda and sariya intruded the house of the complainant and inflicted serious injuries on the parent of the complainant i.e. Smt. Chandrawati and Jogendra, with the intention to grab the house, of which a written report was made but the FIR could not be registered under the clout of the applicant who happens to be a muscleman and a man of chequered history. Taking advantage of the situation, the applicant and other named accused persons used to regularly visit the parent of the complainant and threaten them with dire consequences. Somehow the persons in duress mustered enough courage to get the FIR registered at Police Station Surir, but their misfortune followed them as the applicant along with the accomplices caught hold of them near the police station, set them ablaze after sprinkling some oily material and took to their heels. The ill-fated old burning couple managed to rush in the police station premises itself. Experiencing heat of the hours, the police personnel got them admitted in the hospital. On 30.8.2019 the FIR in this regard was got registered by one Jagdish at Police Station Surir, District Mathura.

Injured Jogendra, on 31.8.2019 after getting recorded his dying-declaration, flat lined his breath at Safdarganj Hospital, Delhi on 01.9.2019 at 7.50 A.M. The cause of death is shown to be septic shock as he sustained 75% deep thermal burn over his body. The dying-declaration of the deceased is annexed as Annexure-4 to the petition.

At this juncture, learned counsel for the applicant requested the Court that before evaluating the text of the F.I.R. (Case Crime No.179 of 2019) and dying-declaration of the deceased dated 31.8.2019, the incident prior to the instant one, must also be taken into account as the same have a vital and pivotal role in adjudicating the present bail application.

It has been further submitted by learned counsel for the applicant that the applicant, aged about 75 years has been implicated due to perfunctory handiwork of the police, just to save the skin of some erring police personnel, who if at all taken timely action with alacrity against the offenders then this early incident might not have occurred. While pleading the innocence of the present octogenarian applicant, the counsel uttered an old saying "All are not thieves that the dogs bark at". It has been strenuously contended by learned counsel for the applicant that the present F.I.R. is a typically handiwork and a typical modus operandi of the local police to save themselves from the clutches of departmental inquiry and consequent actions.

Learned counsel for the applicant has drawn attention of the Court to Annexure-2 to the petition i.e. the F.I.R. No.173 of 2019, u/s 452, 354, 323, 324 I.P.C., referring the date of incident 23.8.2019, of which the F.I.R. was got lodged on 28.8.2019 at 12.21 hours by Jogendra Singh, when he was alive, against only one accused Satyapal s/o Than Singh, with specific allegation that on 23.8.2019 the named accused, in intoxicated condition, intruded his house and started misbehaving with his wife Chandrawati and on resistance by the wife, he committed marpeet and hit iron rod (sariya) blow over her head. Soon thereafter, the informant along with his wife, rushed to the police station. Upon the Majrubi Chitthi of the police the injured Chandrawati was examined by the concerned Medical Officer, on the same day i.e. 23.8.2019 at 4.10 P.M. The M.L.C. Report , annexed as Annexure-1, categorically establishes that the injured Chandrawati sustained one lacerated wound of 1 cm x 1 cm over right side of frontal region of her skull and another injury is of almost same dimension over the left side of frontal region of her scull. The fresh bleeding was present, though both the injuries were said to be simple in nature. But when Jogendra Singh (since deceased) tried to lodge an F.I.R. against Satyapal, the police personnel instead lodging the F.I.R., misbehaved, humiliated and ousted him from the police station. On this, it has been argued by learned counsel for the applicant that a ruthless and insensitive approach has been adopted by the police personnel. If the police at the point of time had taken action against erring offenders, this unfortunate incident would not have happened. Disgusted and disgruntled by the action on the part of police, the couple namely Jogendra and Chandrawati, as a mark of protest, self immolated themselves by pouring kerosene oil all over them and setting themselves ablaze, right in front of Police Station Surir, District-Mathura on 28.8.2019. This unfortunate incident caused upheaval and turmoil in the area as well as local media. The son of Jogendra prepared video of this incident and made it viral and its audio has been made part of the Case Diary.

After the incident, the police sprang into action and one Shri Vijay Singh Chauhan, C.O. Math, P.S.-Surir, District-Mathura himself has registered yet another F.I.R. as Case Crime No.174 of 2019 on the same day i.e. 28.8.2019 at 20.44 hours against erring police officials namely Anoop Saroj, Deepak Nagar and Sunil Kumar with specific allegation that Jogendra Singh, the deceased, has given a written application referring the incident dated 23.8.2019 against Satyapal s/o Than Singh, informing the police about the alleged misbehaviour and assault with his wife but the police personnel refused to oblige him by not lodging the F.I.R. in this regard and thus, the aforesaid F.I.R. was got registered against erring police personnel u/s 166A (c) of I.P.C.

Shri Pankaj Kumar Shukla, learned counsel for the applicant has tried to raise his castle of the argument by referring aforesaid two F.I.Rs., which were lodged one after the other on 28.8.2019 itself only after the incident of self immolation by Jogendra Singh and his wife before the police station. On this learned counsel for the applicant submitted that if the Court evaluates the date and time of the F.I.R. No.179, it refers to 28.8.2019 at 8.00 in the morning, which is self in conformity with aforementioned facts and circumstances.

It has been further submitted by learned counsel for the applicant that after the incident the local police caught hold the son of the deceased namely Jagdish, adopting a typical policia might, after the said demise of Jogendra Singh, succeeded in lodging the F.I.R. by painting canvass of the story in contrast shades and colours, against Satyapal, Bablu, Than Singh, Mohan Shyam (applicant) and Shibbo, mentioning the prosecution story, which is already mentioned above.

It has been next contended by learned counsel for the applicant that there are plethora of witnesses who have testified that being disgusted by the police inaction, the couple under protest immolated themselves. The C.O. too has admitted that the deceased Jogendra immolated himself in front of police station and thus it has been contended by the counsel that the applicant has been implicated by the police using his son Jagish as a tool, in order to save the culprits of Case Crime No.174 of 2019. Applicant's counsel has sarcastically submitted that the death of Jogendra and his wife came to the police as the "blessing in disguise" to save erring police personnel and to rope in the innocent people in this offence. In such a case, there seems that the sport of the police is the death of the evidence.

Learned counsel for the applicant has drawn attention of the Court to the dying-declaration of the deceased dated 31.8.2019 allegedly recorded when he was undergoing treatment at Safdarganj Hospital, Delhi. He has seriously disputed the authenticity of this dying-declaration and has submitted that even assuming for the sake of argument to be correct, even then from the said dying-declaration it is clearly emerging that co-accused Bablu s/o Viri Singh, who could be said to be beneficiary of alleged deal. From the alleged dying-declaration it is clear that the informant Jagdish came to the applicant, who happens to be Pradhan of the village, for addressing some grievance but instead addressing the grievance he extended threat to him and persuaded him to surrender his land. The harassment part is attributed to Bablu, Satyapal and one Shamma. In the last few lines of the said dying-declaration a tangent remark has been made that "in front of the police station, the applicant dragged his wife by her heir and started hurling abuses" and out of sheer frustration he has committed suicide by pouring kerosene over him and his wife and set themselves afire. On this it has been contended by learned counsel for the applicant that the applicant is completely innocent and at best he could be liable for not rendering desired assistance to the informant Jagdish in pacifying the situation. The applicant in no way could be said to be a beneficiary of alleged land, claimed by the co-accused Bablu and the applicant is a rank outsider to this deal and he has hurled abuses. Learned counsel for the applicant has seriously questioned the genuineness of aforesaid dying-declaration but as mentioned above, if assuming for the sake of argument that this is an authentic dying-declaration, even then the case would not fall within the ambit of Section 306 I.P.C.

After hearing the rival submissions by the learned counsels, lets decide the moot pertinent question of law as to whether any conduct of the applicant would fall within the ambit of Section 107/306 IPC? Lets spell out the bare provisions of above-mentioned sections and related citations of Hon'ble the Apex Court in this regard. They are :-

Section 306 IPC provides the punishment for abetment of suicide, which reads thus :-

"Section 306- Abetment of suicide.- If any person commit suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extended to ten years, and shall also be liable to file."

Section 107 of the IPC defines abetment, which reads thus:-

"Section 107- Abetment of a thing.- A person abets the doing of a thing, who--(Firstly)-- Instigates any person to do that thing; or

(Secondly)--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(Thirdly)-- Intentionally aids, by any act or illegal omission, the doing of that thing."

The word instigate literally means to goad, urge, forward, provoke, incite, encourage to do an act. A person is said to instigate another person, when he actively suggests or stimulates him to do an act by means of language, direct or indirect or whether it takes the form of expression, solicitation or of hints of incitement or encouragement. Instigation may be in expression, word or may be simply by conduct of a person creating such a situation exploiting his position, that the other person have no other option but to take the extreme step. Such a person would be liable for abetment.

On this, learned counsel for the applicant has drawn the attention of the Court to the various legal pronouncement of Hon'ble Apex Court in this regard i.e. abetment.

In the case of Chitresh Kumar Chopra vs. State (Gov. of NCT of Delhi) reported in (2010) 3 SCC (Crl.) 367, the relevant extract of paragraph 14 of the judgement quoted hereinbelow :-

"Speaking for the three-Judge Bench, R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."

There is yet another judgement of Hon'ble Apex Court in the case of Amalendu Pal alias Jhantu Vs. State of West Bengal reported in (2010) 1 SCC 707. Paragraph 12 and 13 of the judgement is quoted herein below:-

"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.

13. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."

The pioneer judgement in this regard of Hon'ble Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh reported in (2001) 9 SCC 618. For ready reference, the relevant extract of the judgement is quoted herein below:-

"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."

There is yet another judgement of Hon'ble Apex Court in the case of State of West Bengal Vs. Orilal Jaiswal reported in (1994) 1 SCC 73. For ready reference the relevant extract of the judgement is quoted herein below:-

"This Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."

In the case of Ramesh Kumar Vs. State of Chhattisgarh (supra) Hon'ble Apex Court again observed in paragraph 20 of the judgement which is quoted herein below:-

"20.... The question as to what this the cause of a suicide has no easy answers because suicidal ideation and behavious in human beings are complex and multifaceted. Different indivicuals in the same situation react and behave differently because of the personal meaing they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self protection or an escapism from intolerable self."

In the latest judgement of Hon'ble Apex Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Others decided on 27.11.2020 in Crl. Misc. Criminal Appeal No. 742 of 2020. Paragraph 57 of the judgement is quoted herein below:-

"The Hon'ble Apex Court has provided the guidelines that while considering the application for grant of bail under Article 226 in a suitable cases, the High Court must considered the settled factors, which emerges from the precedents of this Court. These factors can be summarized as follows:-

(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;

(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;

(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;

(iv) The antecedents of and circumstances which are peculiar to the accused;

(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and

(vi) The significant interests of the public or the State and other similar considerations."

At this juncture, Shri Amit Daga, learned counsel for the complainant has raised his arguments in two folds;

Firstly, that the applicant being a Pradhan of village was not honest in his dealing and he was constantly taking the side of offenders. It is alleged that the applicant is having his hands in glove with the named accused persons and out of sheer frustration the couple have set themselves ablaze and;

Secondly, that the applicant is a political influential person having political inclination, affiliation and the fact that enjoys a long criminal history of 16 cases, description of which has been given in Annexure-8 to the petition.

I have perused the criminal history of the applicant and its final outcome. Out of 16 cases, in most of them, either final reports have been submitted and the same were accepted by the court or expunged by the court itself. There are three cases in which he has been acquitted.

On this, it has been submitted by learned counsel for the complainant that being a local politician (Pradhan), pasting such type of frivolous criminal cases i.e. FIRs, NCRs is rampant in the State especially against persons who are holding public office and that is why the police has submitted either final report or expunged the applicant from those cases and satisfied by the explanation given by learned counsel for the applicant in a form of annexed chart.

No doubt the criminal antecedents of an accused carries weight in invoking the discretionary power of the Court while granting bail, but in the present scenario where in most of the cases the police itself has submitted final report and accepted by the court and few cases are State sponsored under the Gunda Act and u/s 110(g) of Cr.P.C. On this basis a person cannot be put behind the bars for ever.

But nonetheless the Hon'ble Apex Court while deciding the case of Neeru Yadav vs State of U.P. and another in Criminal Appeal No.1272 of 2015 on 29.9.2015, has referred a few significant lines from Benjamin Disraeli, as follows :

"I repeat that all power is a trust-that we are accountable for its exercise -that, from the people and for the people, all springs, and all must exist.

That apart, it has to be remembered that justice in its conceptual eventuality and connotative expanse engulfs the magnanimity of the sun, the sternness of mountain, the complexity of creation, the simplicity and humility of a saint and the austerity of a Spartan, but it always remains wedded to rule of law absolutely unshaken, unterrified, unperturbed and loyal."

In yet another judgment of Rajesh Ranjan Yadav v. CBI, (2007) 1 SCC (Cri) 254 and also in Ash Mohammad v. Shiv Raj Singh (2012) 9 SCC 446, the Hon'ble Apex Court lucidly explained the powers of the Court while considering bail application as "we are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society."

Compelling the aforementioned parameters, no doubt there are 16 cases to the credit of the applicant but fact remains that, in most of them the police has either submitted the closure report, which has been accepted by the Court or rest of them are State sponsored.

Lastly it has been contended by learned counsel for the complainant that bail applications of co-accused persons Than Singh and Bablu were rejected by the Co-ordinate Bench of this Court and, as such, the applicant too deserves same treatment.

It is settled principles of law that the principles of parity do not apply in rejection. The applicant is in jail since 30.10.2019 and there is no possibility of early conclusion of trial in near future and prima facie it seems that none of the conduct of the applicant would attract any of the provisions of Section 107 of I.P.C. (if taken the dying-declaration of Jogendra Singh to be true for the sake of argument). It also seems that it is the handiwork of police personnel who used the deceased's son Jagdish as a tool to falsely implicate all his opponents.

Taking into account the totality of circumstances, the old age of applicant being 75 years, more particularly the genesis of F.I.R. No.179 of 2019 and its background this Court is impelled to put a grave question mark over the integrity and modus operandi of the police. As such, the applicant deserves to be bailed out.

Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the considered opinion that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant Mohan Shyam, involved in aforementioned case 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, subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE 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 COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS 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, 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 HIM 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.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:

1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.

4. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

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.

Order Date :- 19.1.2021/M. Kumar