Naiyar @ Shah Alam vs State Of U.P.
2022 Latest Caselaw 21113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 2909 of 2021
 

 
Appellant :- Naiyar @ Shah Alam
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Brijesh Kumar Pandey,Gufran Ahmad Khan
 
Counsel for Respondent :- G.A.,Anand Kumar Srivastava,Faheem Ahmad
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri N.I. Zafri, learned Senior Counsel assisted by Sri Gufran Ahmad Khan, learned counsel for the appellant, Sri Faheem Ahmad, learned counsel for the opposite party no. 2 and Shri Om Prakash Dwivedi, learned A.G.A. for the State.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Naiyar @ Shah Alam to set aside the impugned order dated 09.06.2021 whereby the Special Judge (SC/ST Act), Azamgarh has rejected the bail application No. 1454 of 2021 of the appellant moved by him in Case Crime No. 263 of 2019, under Sections 147, 307, 504, 506 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station Saraimeer District Azamgarh.

Brief facts of the case are that the first information report dated 01.12.2019 was lodged by the Abid an eye witness of the incident against the appellant and other three named and two unknown persons stating that on 01.12.2019 at about 01:00 A.M (in the night) the appellant and other co-accused persons came by Fortuner car and one motorcycle in front of the gate of the newly constructed plot having boundary wall and started indiscriminate firing. In this incident, Kanhiya Lal, Arshad, Ashok, Rajkumar and Kalika sustained firearm injuries on various parts of the body. First informant and his uncle (Fufa) escaped inside the room to save their lives, on hearing the sound of firing and seeing the Police coming, they ran away.

After lodging the first information report, medical examination of the injured persons Arshad, Kanhaiya Lal, Ashok Kumar Prajapati, Kalika and Rajkumar were conducted on 01.12.2019 at 03:15 A.M., 03:10 A.M., 03:35 A.M., 03:05 A.M. and 03:20 A.M. respectively. As per medical reports of the 5 injured persons, there is no injury of firearm, all the injuries are related to lacerated wound and abrasion. As per x-ray report of the injured Rajkumar dated 03.12.2019 a radio opaque shadow metallic density was found in outer surface of skin. After recording the statements of the first informant, injured persons and other prosecution witnesses, charge sheet had been submitted against the appellant and other co-accused persons on 01.12.2020. The appellant was arrested on 20.04.2021.

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 prosecution version is not corroborated by the medical examination reports of the injured persons. As per prosecution case indiscriminate firing was conducted by the appellant and other co-accused persons from the gate of the plot but the injuries sustained by the injured persons are lacerated wound and abrasion. It is further submitted that there is a dispute with regard to land between the parties and two criminal cases have been lodged by the first informant against the appellant. In support of his submission, learned counsel for the appellant has placed reliance upon a judgment of the Apex Court in Case of Prabhakar Tewari Vs. State of U.P. & Another in Criminal Appeal No. 153 of 2020 (arising out of Special Leave Petition (Crl.) No. 9207/2019).

It has also been submitted that co-accused Dinesh Rai having similar role, has already been enlarged on bail by the Coordinate Bench of this Court vide order dated 24.02.2022 in Criminal Appeal No. 4512 of 2021 and the applicant is also entitled to be enlarged on bail on the ground of parity.

It is further submitted that appellant has criminal history of 23 other cases, which has been explained in para no. 2 of the supplementary affidavit. The cases are related to 1990 to 2022. Out of 23 cases, the appellant was acquitted in 4 cases which are related to the year of 1990, 1991, 1992 and 1994; 5 cases are related to U.P. Control of Goondas Act and under Section 110 g of Cr.P.C. and the proceedings were dropped after lapse of time. In one case being Case Crime No. 397 of 2009 under Section 188 of Cr.P.C., in which the appellant is neither accused nor charge-sheeted. Proceedings of Case Crime No. 235 of 2020 under Section 3(1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act is stayed by this Court. 3 cases are related to Section 307 of I.P.C. which are related to the year of 2015, 2018 and 2021 and the appellant had been granted bail by this Court. 2 cases are related to offence of murder in Case Crime No. 19 of 2007 proceedings of the case stayed by this Court. In another Case No. 19 of 2014, in which final report has been submitted and other cases are related to minor offence.

It is further submitted that the appellant is languishing in jail since 20.04.2021. The appellant has no criminal history except the aforesaid cases.

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. as well as learned counsel for the respondent no. 2 have supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. Learned counsel for the respondent no. 2 submits that history sheet of the present appellant is open in Police Station- Banda. In support of his submission, learned counsel for the respondent no. 2 has placed reliance upon a judgment of the Apex Court in Case of Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu & Another in Criminal Appeal No. 1456 of 2012 (arising out of S.L.P. (Criminal) No. 4083 of 2012). But they 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) The prosecution version is not corroborated by the medical examination reports of the injured persons;

(b) As per medical reports of the 5 injured persons, there is no injury of firearm, all the injuries are related to lacerated wound and abrasion;

(c) There is a dispute with regard to land between the parties and two criminal cases have been lodged by the first informant against the appellant;

(d) Co-accused Dinesh Rai having similar role, has already been enlarged on bail by the Coordinate Bench of this Court;

(e) The appellant is languishing in jail since 20.04.2021;

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 09.06.2021 is set aside.

Let appellant/applicant, Naiyar @ Shah Alam 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 :- 15.12.2022

Ishan