Amit Yadav vs State Of U.P. And Another
2021 Latest Caselaw 6834 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 28.06.2021
 
Delivered on 30.06.2021
 
Court No. - 83
 

 
Case :- CRIMINAL APPEAL No. - 1184 of 2021
 

 
Appellant :- Amit Yadav
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Rajiv Lochan Shukla,Arya Suman Pandey,Harendra Yadav
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Rajiv Lochan Shukla, learned counsel for appellant and Sri D.P.S. Chauhan, learned A.G.A. for State. None appeared on behalf of Informant despite service of notice.

2. Appellant has approached this Court by way of filing the present appeal under Section 14A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "Act, 1989") in connection with Case Crime No. 332 of 2020, under Sections 147, 148, 302, 120B IPC and 3(2)(V) of Act, 1989, Police Station Mardah, District Ghazipur. Appellant has impugned the order dated 11.02.2021 passed by Special Judge, S.C./S.T. (P.A.) Act, Ghazipur, whereby application for bail of appellant was rejected.

3. Learned counsel for appellant has submitted that initially Informant, Smt. Mangeeta Devi (wife of deceased) lodged FIR No. 0332 of 2020 on 12.11.2020 at about 21.05 hours informing that today at about 07.00 PM as soon as her husband came back to his house suddenly two persons arrived at a motorcycle and started indiscriminate firing on her husband who died on the spot. Informant and younger brother of deceased came out and saw that two accused running away. It was also informed that they can identify the said two accused.

4. Learned counsel for appellant further submitted that during investigation it was revealed that deceased was a short term money lender and he had given some money on interest to one Dhananjay Singh alias Pappu Singh, who was not returning the money. Earlier also, there were incident of extending threat on this issue by said Dhananjay Singh alias Pappu Singh. Learned counsel further pointed out that co-accused, Pradeep Yadav son of Golu Yadav and Pradeep Yadav son of Shyam Narayan Yadav were arrested on 19.12.2020 and they disclosed that appellant, Amit Yadav had shown a photograph of deceased and a contract for murder was planned on payment of Rs. 1 lac and on the fateful day co-accused, Pradeep Yadav son of Shyam Narayan Yadav alongwith Himanshu Yadav alias Govind Yadav executed the plan and shot dead the deceased.

5. Learned counsel for appellant further submitted that the only evidence against appellant is the confessional statement of co-accused, which is not a reasonable admissible evidence and he has relied on Sections 25 and 26 of Indian Evidence Act, 1872. Even the prosecution story does not indicate any motive for appellant to commit the crime. The dispute was between deceased and one Dhananjay Singh alias Pappu Singh on the issue of money lending. There is no evidence with regard to hatching of conspiracy. The appellant has criminal history of four cases which are of the year 2015 wherein appellant is already enlarged on bail and details of same are disclosed in para 41 of the affidavit accompanying to this appeal. Lastly it is submitted that appellant is in jail since 20.01.2021 and he is entitled for bail.

6. Sri D.P.S. Chauhan, learned A.G.A. appearing for State has opposed the bail. He argued that deceased died due to indiscriminate firing, who received five firearm injuries. It was a planned murder. Appellant is the main accused in the present case, who has given contract to the shooters to eliminate the deceased after hatching conspiracy with co-accused. After investigation a charge sheet has been filed against four accused including appellant. Appellant has a criminal history and there is likelihood that in case of bail the appellant would try to influence the witnesses.

7(A) Law on bail is well settled that 'Bail is rule a and Jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.

(B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.

(C) It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

(D) The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.

8. Considering the rival submissions, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tempering with the evidence, relevant factors mentioned above, particularly that the evidence against appellant is only a confessional statement of co-accused; there is no direct evidence against appellant; prima facie there is no motive for appellant to commit crime as dispute was with one, Dhananjay Singh alias Pappu Singh in connection with money lending; appellant has prior criminal history of four cases which are of the year 2015 wherein appellant is on bail; appellant is languishing in jail since 20.01.2021, as also considering the prevailing situation due to COVID-19, this Court is of the view that Court below has erred in rejecting the bail application of appellant and a case of grant of bail is made out.

9. Let the appellant- Amit Yadav 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 appellant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The appellant will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The appellant 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.

(iv) The appellant will not misuse the liberty of bail in any manner whatsoever. In case, the appellant 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 appellant 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 I.P.C.

(v) The appellant 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 and the Trial Court may proceed against him under Section 229-A IPC.

(vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the appellant.

10. The identity, status and residential proof of sureties will be verified by Court concerned and in case of breach of any of the conditions mentioned above, Court concerned will be at liberty to cancel the bail and send the applicant to prison.

11. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present appeal.

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

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

14. 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.

15. The Investigating Officer is directed to inform the witnesses about Witness Protection Scheme, 2018.

16. Accordingly, the impugned judgment and order dated 11.02.2021 passed by Special Judge, S.C./S.T. (P.A.) Act, Ghazipur is hereby set aside and appeal is allowed.

Order Date :- 30.06.2021

AK