Nadim @ Nanhey vs State Of U.P.
2022 Latest Caselaw 20808 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53922 of 2022
 

 
Applicant :- Nadim @ Nanhey
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Anand Prakash Dubey,Lavkush Dixit
 
Counsel for Opposite Party :- G.A.,Vivek Dhaka
 

 
Hon'ble Brij Raj Singh,J.

Heard Sri Anand Prakash Dubey, learned counsel for the applicant and Sri Sanjay Singh, learned A.G.A.-I for the State.

It has been contended by the learned counsel for the applicant that the applicant has been falsely implicated in the present case due to ulterior motive. It is next contended that the co-accused, namely, Madhav Tyagi, Kasaf, Kasim and Satyam Tyagi have been granted bail vide orders dated 02.11.2022, 03.11.2022, 20.10.2022 and 20.10.2022 respectively passed in Criminal Misc. Bail Application No. 45698 of 2022 (Madhav Tyagi Vs. State of U.P.), Criminal Misc. Bail Application No. 45809 of 2022 (Kasaf Vs. State of U.P.), Criminal Misc. Bail Application No. 45555 of 2022 (Kasim Vs. State of U.P.) and Criminal Misc. Bail Application No. 44590 of 2022 (Satyam Tyagi Vs. State of U.P.). The applicant claims parity on the ground that the role of the applicant is at par with the aforesaid co-accused, who have been granted bail. The relevant portion of the order granting bail to co-accused Satyam Tyagi passed in Criminal Misc. Bail Application No. 44590 of 2022, is extracted hereinbelow:

"1. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

2. This first bail application has been filed with regard to Case Crime No.198 of 2022, under Sections 147, 148, 149, 504, 34, 302 I.P.C. P.S. Bhawanpur, District Meerut.

3. As per contents of first information report, the nominated accused are said to have misbehaved with a teacher of the College which was opposed by informant's son, Sachin Yadav and it was due to this bad blood between the two that nominated accused along with eight to ten other unknown persons attacked the informant's son on 16.06.2022. Specific allegation has been made that the main accused Jatin fired upon the informant's son due to which he suffered bullet injuries in his head and subsequently passed away.

4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him and that he is not named in the F.I.R. nor in the statement of informant under Section 161 Cr.P.C. and has been taken into custody only on the basis of subsequent statement of alleged eye witness Himanshu Arya who apart from the nominated accused has taken name of 26 persons including the applicant. It is submitted that even otherwise the only role made applicable upon the applicant is that of accompanying the main accused while even in the statement of alleged eye witness, allegation of shooting upon the deceased is on Jatin Tyagi and as such it is submitted that the applicant's role is completely different from that of nominated persons.

5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with submission that the informant is not an eye witness and the applicant has been apprehended on the basis of eye witness account clearly indicating his presence at the time of incident. It is submitted that charge sheet has already been filed in the matter against applicant.

6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

7. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears that the applicant was named neither in the F.I.R. nor in the subsequent statement of informant recorded under Section 161 Cr.P.C. and it is only in the subsequent statement of eye witness Himanshu Arya that the applicant's name has been introduced for the first time. It also appears that the role assigned to the applicant even as per statement of said eye witness is only of accompanying the main accused with specific allegation of firing being implicated on Jatin Tyagi; as such, the role of applicant is clearly distinguishable from that of main accused Jatin Tyagi; the applicant is in jail since 18.06.2022 and as yet only charge sheet has been filed in the matter, as such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.

8. Accordingly bail application is allowed."

Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. He further submits that the applicant is languishing in jail since 22.06.2022 and that in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

Learned A.G.A. though opposed the prayer for bail but could not dispute the fact that the role of the applicant is at par with the co-accused who have been granted bail.

Bearing the fact in mind that the case of the applicant is at par with the case of the co-accused who have been granted bail and having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.

Let the applicant- Nadim @ Nanhey involved in Case Crime No.198 of 2022, under Sections 147, 148, 149, 504, 34, 302 I.P.C. P.S. Bhawanpur, District Meerut, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(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 misuses 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 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.

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 in this order.

Order Date :- 13.12.2022

Arun K. Singh