Hematn Kumar Alias Manish vs State Of U.P. And Another
2022 Latest Caselaw 20205 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 1406 of 2022
 

 
Appellant :- Hematn Kumar Alias Manish
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Vijay Shantam
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Vijay Shantam, learned counsel for the appellant and Shri Virendra Kumar Maurya, learned A.G.A. for the State.

Despite service of notice upon respondent no. 2, no one has appeared on his behalf.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Hemant Kumar @ Manish to set aside the impugned order dated 07.12.2021 whereby the Special Judge (SC/ST Act), Aligarh has rejected the bail application No. 6528 of 2021 of the appellant moved by him in Case Crime No. 46 of 2020, under Sections 323, 326, 307, 504 of I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station- Sasni Gate, District- Aligarh.

Brief facts of the case are that the first information report dated 12.02.2020 was lodged by the nephew of the injured against the appellant and other co-accused Sanjay stating that the injured and co-accused Sanjay were plying a truck along-with co-accused present appellant. On 10.02.2020 at 10:45 P.M. the first informant received a phone call on mobile of his father and informed that the injured (Vijendra Singh) is admitted in a Hospital in Emergency Ward. When the injured regained consciousness he told the informant that on 10.02.2020 at 07:30 P.M. co-accused Sanjay took him inside the cabin of the truck and when the injured demanded his salary of twenty months, then he abused him and committed marpit with him and snatched his mobile phone worth of Rs. 17,000/-. At the same time other co-accused Sanjay caught hold the injured and appellant stabbed the injured on the neck with a knife.

After lodging the first information report, medical examination of the injured was conducted on 10.02.2020 at 10:00 P.M. As per medical report, lacerated wound was found on the neck of the injured person. After recording the statements of the injured, eye witness and other prosecution witnesses, charge sheet had been submitted against the appellant and other co-accused Sanjay. The appellant was arrested on 28.09.2021.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the appellant and other co-accused Sanjay and injured are friends and at the time of the incident they were preparing the food and on the dispute of cleanness of the utensils an altercation was took place. It is further submitted that as per medical report, lacerated wound was found on the person of the injured which is impossible to assault by knife. It is further submitted that as per treatment card which is annexed as paper book no. 34, wherein it has been mentioned that the injured fall from height.

It has also been submitted that co-accused, Sanjay having similar role, have already been enlarged on bail by the Coordinate Bench of this Court vide order dated 09.11.2020 in Criminal Appeal No. 1877 of 2020, and the applicant is also entitled to be enlarged on bail on the ground of parity. It is further submitted that the appellant is languishing in jail since 28.09.2021. The appellant has no criminal history.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he 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) As per allegation of the F.I.R., the appellant assaulted by knife to the injured;

(b) As per medical report, lacerated wound was found on the person of the injured.

(c) Co-accused, Sanjay having similar role, have already been enlarged on bail by the Coordinate Bench of this Court;

(d) The appellant is languishing in jail since 28.09.2021.

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, the present criminal appeal is allowed and impugned order dated 07.12.2021 is set aside.

Let appellant/applicant, Hemant Kumar @ Manish be released on bail in the aforesaid case crime number on his 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 applicant 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.

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

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

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

(vi) The applicant 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 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 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 applicant, 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 along-with 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 :- 7.12.2022

Ishan