Prayag Singh vs State Of U.P.
2021 Latest Caselaw 3419 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 82
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6035 of 2021
 

 
Applicant :- Prayag Singh
 
Opposite party :- State Of U.P. 
 
Counsel for Applicant :- Raj Kumar Singh, Shashank Singh, Sunil Kumar Singh 
 
Counsel for Respondent :- G.A., Rajesh Kumar Pal 
 

 
Hon'ble Rahul Chaturvedi, J.

1. Learned counsel for the applicant prays for and is permitted to incorporate Section-354 I.P.C. among array of the sections mentioned in the memo of application during the course of the day, as the impugned bail rejection order passed by the court below includes the aforesaid section also.

2. Heard Ms Vijeta Singh, learned counsel for the applicant; Shri Rajesh Kumar Pal, learned counsel for the informant and learned A.G.A. for the State. Perused the record of the case.

3. Applicant, Prayag Singh, who is facing incarceration since 24.10.2020 in connection with Case Crime No.273 of 2020, u/s 147, 148, 149, 302, 323, 352, 504, 506 I.P.C. and Section-7 of Criminal Law Amendment Act, P.S.-Reoti, District-Ballia, is seeking bail by means of the present bail application in aforesaid case crime.

4. Long and short of the prosecution case is that, one Chandrama Pal lodged an F.I.R. on 15.10.2020 with regard to incident said to have taken place at 04.20 p.m. on the same day against as many as eight named accused persons including the applicant and 20-25 unknown persons, with the allegation that the mob has killed the deceased Jai Prakash @ Gama Pal. From the text of the F.I.R. it is culled out that the causing of fire arm injury, which turned to be fatal, to the deceased, has been attributed to co-accused Dhirendra Pratap Singh @ Dabloo. The role attributed to the applicant is of exhortation, to the effect that on the fateful day on the occasion of selection of Fair Price Shop in the village, there was heated altercation between two fractions, which eventually led to this unfortunate incident.

5. It has been contended by learned counsel for the applicant that keeping in view the long drawn trial and the role attributed to the applicant, he deserves to be bailed out. It is further contended by learned counsel that from the side of the applicant an application u/s 156(3) Cr.P.C. has been moved on 24.10.2020 against 21 named accused persons including Jai Prakash Pal @ Gama Pal (deceased). It is next contended that post-mortem report of the deceased reveals that he has sustained three gun shot injuries viz; (1) A firearm wound admeasuring 0.7 cm x 0.7 cm on right chest just above 2 cm right nipple, blackening and tattooing present around the wound, margin inverted also right lungs upper lobe punchered and left lung recovered bullet; (2) Blackening left arm 10 cm below from left shoulder joint; (3) Lacerated wound admeasuring 2 cm x 0.5 cm on left ear pinna. It has been contended by learned counsel that out of these injuries, injury no.1 has turned to be fatal one and rest of the injuries are on the non vital part of the body. It is also argued by the counsel that no explanation is coming forward as to the injuries sustained by number of injured persons from the side of the applicant. Which group was aggressor over other is to be adjudged at the time of the trial. Thus keeping in view the specific role of exhortation attributed to the applicant, he should be released on bail.

6. Per contra learned A.G.A. as well as learned counsel for the informant vehemently opposed the bail application. Learned counsel for the informant has drawn attention of the Court to the contents of paragraph 17 of the counter affidavit, where it has been mentioned that the applicant has four criminal cases to his credit. On raising a castle over it, he has contended that the applicant is a hardened and habitual offender and loosing him on bail would seriously jeopardize the fair prospects of the trial.

7. Ms. Vijeta Singh, learned counsel for the applicant has rebutted the contention with regard to criminal history and has relied upon the judgment of Hon'ble Apex Court in the case of Kalyan Chandra Sarkar v Rajesh Ranjan 2004 7 SCC (Cri) 1977, wherein it has been held in para-11 as follows :

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a)The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b)Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c)Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Puran v. Rambilas, (2001) 6 SCC 338."

8. Learned counsel for the applicant further relied upon the judgment of Hon'ble Apex Court in the case of Rajesh Ranjan Yadav vs CBI (2007) 1 SCC (Cri) 254, wherein the Hon'ble Apex Court has observed thus :

"16. 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."

9. Learned counsel for the applicant in order to buttress his contention has relied upon another judgment of Hon'ble Apex Court in the case of Ash Mohammad v. Shiv Raj Singh (2012) 3 SCC (Cri) 1172, wherein the Hon'ble Apex Court in the same vein had observed observed that though the period of custody is a relevant factor, the same has to be weighed simultaneously with the totality of the circumstances and the criminal antecedents. That these are to be weighed in the scale of collective cry and desire and that societal concern has to be kept in view in juxtaposition to individual liberty, was underlined.

10. Learned counsel for the applicant has cited another judgment of Hon'ble Supreme Court in the case of Neeru Yadav vs State of U.P. and Another (Crl. Appeal No.1272 of 2015), dated 29.9.2015, wherein the Hon'ble Apex Court has enumerated that :

"13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society;

17. 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."

11. Thus, in the case of Prashan Kumar Sarkar vs Ashis Chatterjee (2010) 14 SCC 496, while dealing with the court's role to interfere with the power of the High Court to grant bail to the accused, the Apex Court observed that it is to be seen that the High Court has exercised this discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in catena of judgments on that point. The Hon'ble Apex Court after thrashing force of the judgment in this regard has formulated eight basic tenets of considerations while deciding any bail application, which are :-

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail."

12. Now comparing with the facts of the present case I find that on a severe issue there was heated altercation between the two groups with regard to selection of Fair Price Shop. Each of both the groups containing 20-30 persons, in the stage of upheaval and chaos, assaulted each other where the persons of both the sides got injured. Everybody was trying to save his life and in that stage attributing the role of exhortation to the applicant, seems to be a bit wild and strange. No doubt the applicant is having a criminal antecedents of four cases but he has not been convicted as of now in none of these cases. These number of cases, to my mind, would not be come into the way in releasing the applicant on bail at this stage.

13. 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, (2018)3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

14. Let the applicant Prayag Singh, who is 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.

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

16. 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.

17. 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-:

(a). 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.

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

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

(d). 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.

18. 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 :- 15.3.2021

Abhishek Sri/M.Kumar