Nadeem vs State Of U.P.
2022 Latest Caselaw 255 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 506 of 2022
 

 
Applicant :- Nadeem
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ram Raj Pandey
 
Counsel for Opposite Party :- G.A.,Mohd. Hasham
 
Connected with
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 481 of 2022
 

 
Applicant :- Yusuf
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ram Raj Pandey
 
Counsel for Opposite Party :- G.A.,Mohd. Hasham
 

 
Hon'ble Sanjay Kumar Pachori,J.

Both the bail applications are arising out of the same case crime number having similar facts, hence, both are being decided by a common order.

Heard Shri Ram Raj Pandey, learned counsel for the applicants, learned A.G.A. for the State, Shri Mohd. Hasham, learned counsel for the first informant and perused the material on record.

Both the bail applications have been filed on behalf of applicants Nadeem and Yusuf under Section 439 of the Code of Criminal Procedure, with a prayer to release them on bail in Case Crime No. 749 of 2021 for offence punishable under Sections 147, 148, 323, 504, 302 of the Indian Penal Code, registered at Police Station Baraut, District Baghpat, during pendency of the trial, after rejecting the bail applications of the applicants by Sessions Judge, Baghpat vide order dated 22.9.2021.

Brief facts of the case are that the First Information dated 29.6.2021 has been lodged by the son of the deceased against the applicants and three other named persons under Sections 147, 148, 504, 323, 302, IPC stating that on 27.6.2021 in the evening an altercation took place between the children of first informant and children of Yusuf on Government Tap for filling up water. Due to this reason Yusuf, his sons Waseem and Nadeem abused first informant and his father Jaju and threatened to kill them. On 28.6.2021 at about 10.00 a.m. when father of the first informant had gone to bring water from Government Tap, applicants and other co-accused persons with common object while abusing his father attacked upon him by lathi, danda, saria and iron rod. Salim and Tanseer, who came to save his father, also sustained injuries. Due to the injuries sustained his father has died. After cremation first informant has lodged the report.

Before lodging of the first information report medical examination of Salim and Tanseer was conducted. As per medical report of Salim, he received one contused swelling and four contusions on right eyebrow, right side of face and other are on non vital part. Tanseer also sustained lacerated wound on his right eyebrow. Inquest of the body of deceased was conducted on 28.6.2021 at 14.13 hours. As per inquest report, no external injury was found on the person of the deceased. Postmortem of the deceased was conducted on 28.4.2021 at 4.30 p.m. As per postmortem report of Jaju, aged about 60 years, 8th rib was found fractured. Cause of death was shock due to hemorrhage resulting from rupture of liver due to internal injury. Postmortem was conducted within eight hours of the incident. After recording the statements of the injured witnesses Salim and Tanseer and other relevant witnesses, charge sheet has been submitted against the applicants and three other named co-accused persons on 25.9.2021. The applicants were arrested on 29.6.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per allegation of FIR, applicants and three other co-accused persons committed marpeet with Jaju by lathi, danda, saria and iron rod. As per statements of injured/eye witnesses, after receiving the injuries, deceased has been pushed by the applicants and other co-accused persons in a newly digged ditch near Government tap. It is further submitted that the allegation of the first information report has not been corroborated by the postmortem report of the deceased as well as inquest report. It is further submitted that injured persons have received simple injuries. General allegation of marpeet has been levelled against the applicants. No specific role or involvement has been attributed to the applicants. It is further submitted that co-accused Ishrat, daughter of Yusuf and Waseem have been granted bail by the Coordinate Benches of this Court vide orders dated 14.12.2021 & 11.3.2022 in Criminal Misc. Bail Application Nos. 44455 of 2021 & 4986 of 2022 respectively.

He has next argued that the applicants have no previous criminal history and if the applicants are released on bail, they shall not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for the informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicants and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit that in case the applicants are released on bail, they will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) No external injury was found on the person of the deceased, aged about 60 years in the inquest and postmortem report;

(b) Cause of death is rupture of liver due to internal injury;

(c) General allegation of marpeet has been levelled against the applicants;

(d) No specific role or involvement has been attributed to the applicants;

(e) Co-accused Ishrat, daughter of Yusuf and Waseem have been granted bail by the Coordinate Benches of this Court vide orders dated 14.12.2021 & 11.3.2022 in Criminal Misc. Bail Application Nos. 44455 of 2021 & 4986 of 2022 respectively.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, both the bail applications are allowed.

Let applicants, Nadeem and Yusuf be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicants shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicants shall not pressurize/intimidate the prosecution witnesses.

(iii) The applicants 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 of Cr.P.C.

(iv) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel.

(vi) The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicants are 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 in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicants, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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.

Order Date :- 1.4.2022

T. Sinha