Kallu vs State Of U.P.
2021 Latest Caselaw 5483 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 

 
Case :- BAIL No. - 4941 of 2021
 

 
Applicant :- Kallu
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atul Verma,Vinod Kumar Yadav
 
Counsel for Opposite Party :- G.A.
 
(In residence)
 

 
Hon'ble Vikas Kunvar Srivastav,J.

The case is called out through video conferencing.

Learned counsel SriAtul Verma, Advocate appears through video conferencing in virtual hearing on behalf of bail-applicant.

Learned brief holder Sri Nikhil Kumar Singh, Advocate on behalf of State also appears through video conferencing in virtual hearing of the case. As he has received the instructions in the matter, he is ready to argue the case on the basis of case dairy and other relevant materials available with him.

The present bail application is filed on behalf of the accused-applicant-Kallu, who is involved in Case Crime No.406/2020, under Sections 323/328/304 of I.P.C., registered at Police Station Banthara, District Lucknow.

The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Special Judge, SC/ST Act, Lucknow vide order dated 26.03.2021.

The prosecution story in brief is that the deceased-Nehru when refused to execute sale deed under pressure of land mafias, the named accused respectively Rajendra, Deepu Pandit, Sonu Pandit and Sujeet, forcibly carried him to the registry office, where when he did not succumbs to their pressure, they used to administer him liquor heavily and beaten badly, thereafter, thrown him between the bushes.

Learned counsel submitted that the incident is of 20.10.2020 and the first information report was lodged belatedly on 28.10.2020 by the brother of the deceased though he knew about the incident and traced the injured Nehru in the night of next date. An inquest report was prepared by the police, wherein, neither any external injuries were reported nor apprehension as to the cause of death was expressed by the complainant, who was witness himself in the inquest.

Learned counsel further submitted that informant, brother has specifically named accused Rajendra, Deepu Pandit, Sonu Pandit and Sujeet who forcibly carried the deceased-Nehru with them and thereafter he was found badly injured and ultimately succumbed of the injuries. So far as the present accused-applicant is concerned, the complainant himself has stated in the FIR that it is heard in the locality that the present accused-applicant-'Kallu' has also played some role in causing death of the deceased-Nehru.

Learned counsel further submitted, the post-mortem report shows eight external injuries on the dead body of the deceased, however, so far as the 'death' is concerned, it did not occur instantly but he was found by the brother-complainant in badly injured position and was admitted in the night of the incident in Vidhya hospital and within two hours, when the treatment was going on, putting him on ventilator support, he died, as evident from the annexure no.3 on record alongwith the affidavit filed in support of the bail-application.

In the context of above facts, learned counsel submitted that the present accused-applicant who is not specifically named either to carry away the deceased from his field forcibly on the date of incident i.e. 20.10.2020 nor any specific role of beating with any arm is assigned to him, his name is mentioned by the complainant merely on speculation with some malafide intention.

Lastly, learned counsel submitted that the main accused namely Ajendra Nath Singh @ Sonu Pandit and Durgendra Nath Tiwari @ Deenu @ Deepu have already been granted bail by co-ordinate Bench of this Court vide order dated 19.02.2021 passed in Criminal Appeal No.73 of 2021 and order dated 15.03.2021 passed in Criminal Appeal No.136 of 2021 respectively, whose offence were seemingly much graver than the present accused-applicant, who has no role at all in the incident. On the aforesaid grounds, learned counsel submitted that the present accused-applicant deserves to be granted bail.

Learned brief holder for the State has vehemently argued on the point that the name of accused-applicant is mentioned in the first information report, however, he has no rebuttal of the fact that no specific role, either in the first information report or in statements recorded by the Investigating Officer is mentioned to have any overt act on the part of accused-applicant which might have resulted into death of the deceased, rather, admittedly the deceased was carried away forcibly by the four other co-accused and his body was found in injured position by his brother and in the hospital his death occurred due to cardiac respiratory failure and also he was in liquor intoxication when he was under treatment.

In the light of the aforesaid facts and circumstances as argued by learned counsels, I find force in the submission of learned counsel for the bail-applicant that there is no direct nexus from the death of the deceased with the present accused-applicant.

Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicant-accused in the offence, the gravity of offence, severity of punishment, I find it to be a fit case for grant of bail.

It is notable that the case of present accused-applicant is distinguishable from that of other co-accused Rajendra, Deepu Pandit, Sonu Pandit and Sujeet for the reason discussed in this order.

Let applicant (Kallu), involved in Case Crime No.406/2020, under Sections 323/328/304 of I.P.C., registered at Police Station Banthara, District Lucknow be released on bail on his furnishing personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.

(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants 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.

Order Date :- 19.5.2021

Saurabh