Rahul vs State Of U.P.
2022 Latest Caselaw 21932 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21801 of 2022
 

 
Applicant :- Rahul
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sunil Kumar Dubey,G.S. Chauhan,Gaurav Singh Chauhan
 
Counsel for Opposite Party :- G.A.,Ardhendu Shekhar Sharma,Ram Babu Sharma
 

 
Hon'ble Manish Mathur,J.

1. Heard learned counsel for applicant, learned counsel for informant and 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. 272 of 2021 under Sections 147, 148, 149, 302, 307, 452, 506 IPC, P.S. Shahbad, District Rampur.

3. As per contents of FIR, incident is said to have taken place on 30th June, 2021 at about 8.40 P.M. when the persons nominated in the F.I.R. allegedly barged into the house of first informant and opened indiscriminate fire upon the gathering of first informant and his family members resulting in grievous injuries and subsequent death of first informant's brother Gabbar.

4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him which is amply borne out by the fact that he is not named in the F.I.R. and has been subsequently introduced as being a member of unlawful assembly in the statement of eye witness Somwati wife of Ram Veer Singh. It is submitted that statement of said witness has been recorded subsequently specifically identifying the applicant and his role in the incident but it is submitted that it is surprising that the name of applicant does not find mention in the F.I.R. despite the positive identification by eye witness. It is submitted that even in the statement of first informant who is also an eye witness recorded under Section 161 Cr.P.C., name of applicant has been taken on the basis of information received from other villagers. As such it is submitted that introduction of applicant's name in the incident is a result of deliberation. It is submitted that as such the imposition of Sections 147, 148 and 149 IPC against the applicant are not readily made out although applicant is in jail since 10th January, 2022 with only charge sheet having been submitted.

5. Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have strenuously opposed bail application with the submission that applicant has been positively identified being a member of unlawful assembly and his role of opening fire indiscriminately on the gathering has also been indicated in the statement of eye witness Somwati. Learned counsel for informant has further drawn attention to the case diary indicating C.D.R. with the submission that applicant has been found present on the spot in terms of the aforesaid report. Learned counsel has also cited judgment rendered by Hon'ble Supreme Court in the case of Deepak Yadav versus State of U.P. and another in Criminal Appeal No. 861 of 2022 to submit that in cases where the accused has criminal history of several criminal cases as in the present case where the applicant has a criminal history of at least four cases, the indulgence of bail is not required to be granted particularly with regard to heinous nature of offence and prima face involvement of accused.

6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that apart from nominated persons in the F.I.R., two unidentified persons have also been indicated. The first informant in his additional statement under Section 161 Cr.P.C. recorded on 3rd July, 2021 has indicated the role and presence of applicant on the basis of information derived from other villagers. It is only in the subsequent statement of eye witness Somwati that the applicant has been positively identified as being present on the occasion and his role in indiscriminate firing but it also appears that despite positive identification by the eye witness, applicant has not been named specifically in the F.I.R. nor has any role been attributed to him. There also does not appear to be any recovery from the applicant. Learned counsel for informant has also drawn attention to C.D.R. to indicate that threat call had been made from the phone of the applicant. However it is noticeable that charge sheet has been filed under Sections 147, 148 and 149 IPC and not under Section 34 IPC. The C.D.R. as such may not indicate absolute presence of applicant at the place of incident and is however subject to corroboration by evidence during course of trial.

7. So far as judgment rendered by Hon'ble Supreme Court in the case of Deepak Yadav (supra) is concerned, the same is clearly distinguishable on the facts and circumstances since accused therein was clearly named in the F.I.R. with his specific role also being indicated in the F.I.R. itself. The principles governing grant of bail have already been analysed in the aforesaid judgment and have been delineated in extenso therein which specifically issues a direction that while admitting an accused to bail reasons are required to be recorded therein. Hon'ble Supreme Court has also adverted to the judgment rendered in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another reported in (2004) 7 SCC 528 while holding that a Court granting bail should exercise its discretion in a judicious manner and not as a matter of course and that a detailed examination of evidence and elaborate documentation of merit need not be undertaken although there is need to indicate reasons for prima facie concluding why bail was being granted. It has further been held that at the time of consideration of second or subsequent bail application, there is onus on the Court to consider the grounds on which earlier bail application had been rejected and it is only after such consideration if the court is of the opinion that bail has to be granted then specific reason should be indicated why the subsequent bail application is being granted in spite of earlier rejection. The relevant paragraph is as follows:

"11. The law in regard to grant or refusal of bail is very well settled. The court granting ball should exercise its discretion in a Judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting ball; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singht and Puran v. Rambilas.)

12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay)."

8. 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."

9. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

10. Accordingly bail application is allowed.

11. Let applicant Rahul involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following 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 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.

Order Date :- 20.12.2022

Prabhat