Rahul vs State Of U.P.
2021 Latest Caselaw 5014 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on - 16.4.2021
 
Delivered on - 4.5.2021 
 
IN CHAMBER
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35556 of 2020
 
Applicant :- Rahul
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Bhavya Sahai
 
Counsel for Opposite Party :- G.A.,Pavan Kumar Mishra
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Shri Bhavya Sahai, learned counsel for the applicant and learned A.G.A. for the State.

2. This bail application under Section 439 of Code of Criminal Procedure is filed by the applicant seeking enlargement on bail during trial in connection with Case Crime No. 327 of 2019, under Sections 147, 148, 149, 307, 302, 452, 504, 506 IPC, Police Station - Badgaon, District - Saharanpur.

3. Informant - Karan lodged a First Information Report dated 3.11.2019 at 10:41 hours against applicant, 9 named co-accused and one unknown accused under above referred offences alleging that all the accused persons armed with illegal fire arms, having prior enmity formed an unlawful assembly with common object, started indiscriminating firing as soon as they entered into the house of applicant on 2.11.2019 at 7 p.m.. Accused Vikky, Rahul (applicant herein) and Yogender caused fire arm injuries to Sagar (brother of informant) who died. Accused Ompal, Narender and Dimple caused fire arm injuries to Omkar (father of informant). Accused Gaurav caused fire arm injuries to Anand (brother of informant). Accused Rishipal and Vikky caused fire arm injuries to Sanjay, Deepak and Akshay (neighbours of the informant). Accused Rahul caused fire arm injuries to applicant and his nephew Sahdev ( a boy aged about 1 year).

4. Post-mortem report of deceased Sagar discloses that he had received two gun shot injuries and two lacerated injuries and it was opined that cause of death was due to shock and hemorrhage as a result of anti-mortem injuries.

5. Injured - Omveer had received fire arm injury, whose nature was grievous and dangerous to life. Injured - Akshay Kumar received two gun shot injuries on left ear and left side of neck. Similarly, injured - Deepak, Sanjay Kumar, Dhamveer Singh, Baby Sahdev and Anand have received fire arm injuries of grievous nature.

6. Shri Bhavya Sahai, learned counsel for the applicant submitted that :-

(i) It is case of cross version, wherein 11 persons on accused side were injured and the First Information Report was lodged against complainant side. Prosecution has not explained injuries, caused to persons of accused side. Learned counsel relied upon a judgment passed by Supreme Court in Babu Ram and others vs. State of Punjab (2008) 3 SCC 709 to submit that prosecution has suppressed genesis and origin of the occurrence and has thus not presented the true version.

(ii) At this stage, it cannot be determined that which party was aggressor. No recovery is made from the possession of applicant, who has no criminal antecedents also.

(iii) Co-accused Akshay, Narendra and even similarly situated co-accused Yogendra Singh (to whom role attributed is of firing on deceased) have already been granted bail by separate orders passed by co-ordinate Benches of this Court.

7. Learned A.G.A. has vehemently opposed the bail application and submits that there are serious allegations levelled against the applicant who caused fire arm injuries to deceased. All the injured eye-witnesess have attributed specific role to the applicant of causing fire arm injuries to deceased. The case of co-accused namely Akshay and Narender, who have already been granted bail by this Court, is distinguishable on the ground of specific allegation on applicant of firing on deceased. The order of granting bail to similarly situated co-accused Yogender is bereft of any reasoning. Therefore, it is not a case of parity also. In the present case, one person has died and 7 persons, including a boy aged one year have sustained fire arm injuries which are of grievous in nature. Lodging of cross case, wherein 11 persons have received injuries, cannot be only ground to grant bail to applicant ignoring the above mentioned submissions.

8. Law on bail is well settled that 'Bail is rule and Jail is 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. 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. 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. 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, reported in 2021 SCC Online SC 230, in this regard.

9. I have considered arguments submitted by rival parties and perused the counter and rejoinder affidavits, bail orders of co-accused as well as materials available on record. In the present case, from informant side, one person has died due to fire arm injuries and 7 persons (including a boy aged one year) have received gun shot injuries. All the co-accused have been attributed specific role of causing fire arm injury either to deceased or to injured. Nature of injuries is grievous and few are even dangerous to life.

10. Bail order of co-accused Narender has distinguished the role of the applicant, Vikky and Yogender, who have been assigned role of causing fire arm injuries on the deceased. So far as bail order of co-accused Yogender Singh is concerned, it states that "without expressing any opinion on the merits of the case and considering the nature of accusation and the severity for punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case." whereas bail order of co-accused Akshay whose case is clearly distinguishable, states that "having heard learned counsel for the parties and gone through with the FIR of both side, medical reports of both side, inquest report and entries made therein that it was an occurrence wherein both sides have sustained injuries and considering the facts and circumstances of the case as also the submissions noticed above, without commenting upon merits of the case, I am of the opinion that the applicants are entitled to be released on bail."

(ii) Learned counsel for the applicant has relied upon Babu Ram (Supra) to state that prosecution has not explained injuries caused to persons of accused side, however, it is not helpful as the same is in regard to finding after complete trial, whereas presently Court is dealing a bail application, which has to be decided on the parameters referred above.

(iii) In the present case, prima facie, applicant and other co-accused having deadly weapons (illegal fire arms) formed an unlawful assembly and thereafter entered into the house of informant and caused indiscriminating firing, which resulted into death of one person due to multiple fire arm injuries and 7 persons including a boy of one year have sustained fire arm injuries which are serious in nature. Therefore, there are very serious charges levelled against the applicant, as specific role of firing on deceased is attributed to him in the First Information Report and in the statement of injured eye-witnesses also. Above referred material issues are not noticed while granting bail to co-accused Yogender Singh. Therefore, no case of parity is made out and further it is well settled that parity is not a sole ground to grant bail.

(iv) The effect of cross case wherein First Information Report was lodged on 29.11.2019 on a direction passed by C.J.M. concerned on an application filed on 11.11.2019 of an alleged occurrence took place on 6.11.2019 and suppression of injuries to accused side, if any, would be dealt during the trial after the evidence is tested.

(v) In view of above discussion, applicant has failed to make out a case for bail. Therefore, the present bail application is rejected.

Order Date :- 4.5.2021

Rishabh

[Saurabh Shyam Shamshery, J.]