Rajendra Bahadur Singh S/O Late ... vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 4988 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5148 of 2022
 
Applicant :- Rajendra Bahadur Singh S/O Late Sri Samar Bahadur Singh
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home
 
Counsel for Applicant :- Arun Sinha,Ramakar Shukla
 
Counsel for Opposite Party :- G.A.,Ayodhya Prasad Mishra A.P. Mishra, Rachana Chauhan, Rajbaksh Singh,Rituraj Mishra
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri Arun Sinha, learned counsel assisted by Sri Ramakar Shukla, Advocate for the applicant, Sri Rupendra Kumar Singh, learned State Counsel for the State and Sri A.P. Mishra along with Sri Raj Baksh Singh, learned counsel for the complainant/ informant.

2. Learned counsel for the applicant has apprised that the present applicant is in jail since 12.01.2021 in Case Crime No.10 of 2021, under Sections 147, 148, 149, 452, 323, 325, 504, 506, 427, 302, 34 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station-Musafirkhana, District-Amethi. He has further submitted that the applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story so narrated in the First Information Report (in short F.I.R.).

3. The attention of this Court has been drawn towards the impugned F.I.R. which has been registered on 10.01.2021 for the incident in question dated 10.01.2021 against seven persons including the present applicant. The allegations in the F.I.R. are to the effect that all the accused persons having common intention and common object attacked upon the family members of the informant, resultant thereof, some of family members got injured and brother of the informant/ complainant, namely, Surendra Kumar Pandey succumbed to such injuries. As per the F.I.R., the present applicant was present on the spot having his licensed gun whereas other accused persons are said to have been possessed with other weapons. One accused, namely Raghunandan Singh was having Hockey, Vishwa Nath Pratap Singh and Akhilesh Pratap Singh @ Chunnu were having illegal country made Pistols and accused persons, namely, Udai Pratap Singh @ Beenu, Brajesh Pratap Singh and Akhilesh Pratap Singh were having Farsa and Lathi. Further, on the exhortation of Raghunandan Singh, the accused Vishwa Nath Pratap Singh and Akhilesh Pratap Singh @ Chunnu opened fire upon the victim (since deceased) and other accused persons entered into the premises of the informant and started beating up other family members and damaged their Maruti Car.

4. Sri Sinha has submitted that out of total 07 accused persons, the police has submitted final report in favour of accused Vishwa Nath Pratap Singh. The other accused persons, namely, Brajesh Pratap Singh, Raghunandan Singh and Udai Pratap Singh @ Beenu have been granted bail.

5. Sri Sinha has submitted that on the date of incident i.e. 10.01.2021 on account of some trivial dispute there was free fight between the present accused persons and the family members of the informant. The complainant Jitendra Kumar Pandey, Surendra Kumar Pandey, Abhishek Pandey and Lavkesh Singh were possessed with the Sword (Talwar), Axe (Kulhari) and Lathi and assaulted the accused Brajesh Pratap Singh with their respective weapons. On alarm being raised by the accused Brajesh Pratap Singh and Smt. Saroj Singh w/o Sri Raghunandan Singh accused Chunnu tried to save Brajesh Pratap Singh and Smt. Saroj Singh but he was also assaulted by Lathi. The accused Chunnu to save her live and accused Brajesh Pratap Singh fired upon Surendra Kumar Pandey.

6. Further, the family members of injured Brajesh Pratap Singh approached the police at-once to lodge the F.I.R. and the police has received their complaint but did not inform about lodging of the F.I.R. However, the said injured accused Brajesh Pratap Singh was medically examined through police on 10.01.2021.

7. Sri Sinha has drawn attention of this Court towards Annexure No.28 of the bail application, which is injury report of co-accused Brajesh Pratap Singh, who has been examined at Community Health Centre Musafirkhana, District-Amethi, which reads as under:-

Injury No.(I) A stitch wound 9 cm. long.3 cm. width No. of Stitch 5 Rt side of face 9cm. below Rt. Eye.

(II) A stitch wound 4 cm. long .2 cm. width. No. of Stitch is 2 Left side of head 14 cm. above Left Dar.

(III) A abrasion 2.5 cm. x 2 cm. over Left side of face 4 cm. away Angle of Left Mouth.

(IV) A contusion 4 cm. x 3 cm over Posterior Aspect of Left hand advise X-Ray of Left hand pt. referred to DH Gauriganj for X-Ray of Left hand AP and Lateral view and Expert opinion and management

(V) Abrasion (Heled) 6cm. x 2 cm. over Lateral aspect of Upper Hand Right side just touch of Rt. elbow joint.

Opinion :- Injury No.I, II, III, V is simple in nature caused by some hard and blunt object duration about 2 day old. Injury No.IV kept under observation. Pt. referred to X-Ray of Left hand AP and Lateral view DH. Gauriganj for Exper opinion and management.

8. Sri Sinha has also shown the photographs of the said injured co-accused Brajesh Pratap Singh, which has been annexed as Annexure No.29 of the bail application. Not only the above, another accused person, namely, Akhilesh Pratap Singh @ Chunnu received injuries and his examination was done on 12.01.2021 at Community Health Centre, Musafirkhana, Amethi.

9. Sri Sinha has further drawn attention of this Court towards Annexure No.32 of the bail application which is an F.I.R. lodged on 17.12.2021 by the wife of accused Raghunandan Singh for the incident of 10.01.2021. The said F.I.R. was lodged after filing application under Section 156 (3) Cr.P.C.. Sri Sinha has shown the contents of such F.I.R. wherein the informant has clearly stated that she was known to the fact that in the incident in question both side had sustained injuries. Accused Brajesh Pratap Singh sustained serious injuries on his head, neck and face. His medical examination was conducted by the police. She was under bonafide impression that when the aforesaid fact has been noticed by the police, the F.I.R. would have been lodged. The male members of her family were in jail. When she came to know the fact that F.I.R. has not been lodged on 22.04.2021, she preferred an application to the Superintendent of Police, Amethi on 23.04.2021 and when no proper action has been taken by the Superintendent of Police, Amethi, she filed an application under section 156 (3) Cr.P.C. before the learned court concerned on 07.09.2021 then the learned court concerned after calling upon the report from the concerning police issued direction to register the F.I.R. Pursuant to such direction her F.I.R. was lodged on 17.12.2021, Therefore, as per Sri Sinha, the delay in lodging F.I.R. has been properly explained. However, Sri Sinha has submitted that in view of the injuries sustained by the co-accused Brajesh Pratap Singh the F.I.R. was not lodged under proper sections.

10. Sri Sinha has drawn attention of this Court towards the statement of the informant and other witnesses to demonstrate that no specific role of firing has been attributed to the present applicant. He has been assigned the role to the effect that he was having his licensed gun and was present on the spot. He has also drawn attention of this Court towards Annexure No.17 which is recovery memo and all the weapons used in the incident have been recovered from pointing out of all the accused persons including the present applicant. In such recovery memo, one fact has been noticed by the police that the accused Akhilesh Pratap Singh @ Chunnu has got his pistol recovered and confessed that he had fired on Surendra Kumar Pandey who succumbed to such firearm injuries.

11. Therefore, Sri Sinha has submitted that the accused Akhilesh Pratap Singh @ Chunnu has confessed his guilt and the firearm has been recovered on his pointing out, therefore, the present applicant may not be held responsible for killing Surendra Kumar Pandey. Sri Sinha has reiterated that none of the witnesses/ injured witness has levelled any specific allegation of firing upon Surendra Kumar Pandey or upon anyone as everyone has stated that the applicant was present on the spot having his licensed gun.

12. As per Sri Sinha, the co-accused Brajesh Pratap Singh to whom the role has been attributed of attack upon the family members with sharp edged weapon, the co-accused Raghunandan Singh who has been attributed the role of having Hockey and exhortation and co-accused Udai Pratap Singh who was attributed the role of assault through Farsa and Lathi, have been granted bail by this Court vide order dated 20.04.2022 passed in Criminal Misc. Bail Application No.12032 of 2021 (Brajesh Pratap Singh vs. State of U.P.), vide order dated 29.04.2022 passed in Criminal Misc. Bail Application No.4236 of 2022 (Raghunandan Singh vs. State of U.P.) and vide order dated 13.05.2022 passed in Criminal Misc. Bail Application No.4752 of 2022 (Udai Pratap Singh vs. State of U.P.) respectively and role attributed to the present applicant is that he was present on the spot having his licensed gun but no role of firing has been attributed to him. Therefore, the case of the present applicant is on better footing than the other co-accused persons, hence, the present applicant may be released on bail on the basis of principles of parity. The charge-sheet has been filed in this case, therefore, there is no apprehension of absconding the present applicant or tampering with the evidence if he is released on bail.

13. Learned counsel for the applicant has undertaken on behalf of the present applicant that the applicant shall not misuse the liberty of bail, if so granted by this Court and shall abide by all terms and conditions of the bail order and shall cooperate with the trial proceedings.

14. Per contra, learned Additional Government Advocate for the State as well as Sri A.P. Mishra, learned counsel assisted by Sri Raj Baksh Singh, learned Advocate for the complainant/ informant have vehemently opposed the prayed for bail.

15. Sri A.P. Mishra has submitted that the parity may not be considered as a sole ground to grant bail to the accused person. He has further submitted that the alleged confession of Akhilesh Pratap Singh @ Chunnu is of no used. He has also submitted that the alleged cross case from the side of the accused persons is false inasmuch as for the incident in question i.e. 10.01.2021 the F.I.R. from the side of the accused has been lodged on 17.12.2021. Sri Mishra has submitted on the basis of information so received, that in that case the final report has been filed by the police as recital to this effect has been given in his short counter affidavit. The weapons so recovered from pointing out of the accused persons including the present applicant have been sent for Forensic Science Laboratory (F.S.L.) report and no such report has been received to the prosecution. Learned Additional Government Advocate has also apprised that no such F.S.L. report has been received.

16. Sri Mishra has drawn attention of this Court towards the statement of co-accused Raghunandan Singh, which is annexed as Annexure No.CA-3, who has been attributed the role of exhortation and has been granted bail as stated in his statement that he and his family has given the proper treatment to the family of the applicant/ informant so that in future they could not stand before his family. He has also stated that he has no regret for the act committed by him and his family. On the basis of the aforesaid statement, Sri Mishra, has submitted that the aforesaid statement clearly indicates the daring attitude of the co-accused Raghunandan Singh who has exhorted the other accused persons to assault the family members of the informant.

17. He has also submitted that while beating up and assaulting the family members of the informant/ complainant, the accused persons did not clear as to who are before them inasmuch as in the list of injured persons there are some children and female members. Further, the testimony of the injured persons may not be ignored inasmuch as the F.I.R. itself says that all the accused persons including the present applicant have entered into the premises of the informant/ complainant and started beating up all the family members irrespective of the fact whether those are male, female or children. Therefore, on the basis of the aforesaid fact the present applicant is not entitled for bail.

18. Sri Misrha has submitted with vehemence that at the time of consideration of bail application of co-accused persons, namely, Brajesh Pratap Singh, Raghunandan Singh and Udai Pratap Singh the proper facts could not be brought before the Court, therefore, they have been enlarged on bail. Since he has obtained the relevant material and has brought into the kind notice of this Court through the short counter affidavit, therefore, considering those material the present applicant is not entitled for bail and against the other co-accused persons who has been granted bail, the appropriate application for cancellation of bail may likely to be filed.

19. Sri Mishra has drawn attention of this Court towards the various decisions of Hon'ble Supreme Court and make reliance upon the recent two judgments, namely, Jagjit Singh vs. Ashish Mishra @ Monu reported in AIR Online 2022 SC 552 and Ramesh Bhavan Rathode vs. Vishanbhai Hirabhai Makwana reported in AIR 2021 SC 2011 by submitting that while considering the bail of the accused his prior criminal antecedents must be seen. He has also drawn attention of this Court towards one order dated 07.05.2022 passed by this Court in re: Shiv Sagar @ Pankaj Mishra vs. State of U.P. in Criminal Misc. Bail Application No.11033 of 2018 wherein considering the prior criminal antecedents of the accused person, the bail was rejected.

20. Sri Mishra has submitted that since the present applicant is having criminal history of four cases, therefore, his bail application is liable to be rejected.

21. On that, Sri Sinha, learned counsel for the applicant has submitted that in the present case both sides have sustained injuries and from the side of the informant/ complainant some persons were having sharp edged weapons and the injury sustained to the co-accused Brajesh Pratap Singh was caused by the sharp edged weapon. He has further submitted that right to private defence is available to every person and in a case of free fight it is unable to draw inference as to who has caused injury to whom. He has also submitted that in paras-40 & 41 of the bail application he has explained the criminal history of the present applicant. In Case Crime No.45 of 2021, under Section 2/3 of Prevention of Damage to Public Property Act, 1984, Police Station-Musafirkhana, District-Sultanpur, the applicant has been granted bail. The Case Crime No.13 of 2021 has been registered under Sections 19/20/27 of the Arms Act which is relating to the present case crime and there is another case registered at Case Crime No.787 of 2005, under Sections 147, 323, 504 & 506 I.P.C., Police Station-Musafirkhana, District-Sultanpur, wherein the present applicant has been granted bail. Therefore, Sri Sinha has submitted that except the present case, other cases are minor cases and the present applicant has been granted bail in the aforesaid cases.

22. Sri Sinha has submitted that in the short counter affidavit filed by Sri A.P. Mishra one Crime Case No.78 of 2001 has been wrongly indicated inasmuch as no such case has been registered against the present applicant. However, the said case was registered against the co-accused Raghunandan Singh, who has been acquitted in that case.

23. Therefore, Sri Sinha has reiterated that considering the aforesaid submissions, the present applicant may be enlarged on bail giving him the benefit of parity inasmuch as the case of the present applicant is on better footing than the other co-accused persons, who have been granted bail by this Court.

24. Heard learned counsel for the parties and perused the material available on record.

25. Since the learned counsel for the applicant has prayed for bail seeking parity with the other co-accused persons who have been granted bail, therefore, firstly I shall advert to such submission of learned counsel for the applicant.

26. On the basis of material available on record the co-accused Brajesh Pratap Singh has been assigned the role of assault upon the family members of the informant/ complainant through sharp edged weapon. the co-accused Raghunandan Singh has been attributed the role of exhortation having Hockey in his hand. The co-accused Udai Pratap Singh and Brajash Pratap Singh have been attributed the role of assault having sharp edged weapon in his hand, whereas the present applicant has not been attributed any specific role; only this much has been alleged in the F.I.R. and in the statement of the witnesses that the present applicant was present on the spot having his licensed gun. To be more precise, no role of firing has been attributed to the present applicant. Therefore, on the basis of the aforesaid fact, prima-facie, it appears that the present applicant may be given the benefit of parity with the co-accused persons who have been granted bail by this Court.

27. So far as the criminal history of the present applicant is concerned, the same has been explained properly.

28. It is true the parity may not be considered as a sole ground but it is also true that if the accused person seeking parity has got better case than those accused persons who have been granted bail, his/ her request for parity should not be turned down. Besides, the Apex Court in the case in re: Dataram Singh vs. State of U.P. & another reported in (2018) 3 SCC 22 has held that bail is rule and denial of bail is an exception.

29. Therefore, considering the nature and gravity of the acquisition, severity of punishment in the event of conviction, contents of the F.I.R., statement of the witnesses and the fact that the co-accused persons, namely, Raghunandan Singh, Brajesh Pratap Singh and Udai Pratap Singh have been granted bail by this Court and the role of the present applicant, prima-facie, appears to be on the better footing than the other co-accused persons, the present applicant is entitled for bail.

30. Accordingly, the bail application is allowed.

31. Let the applicant-Rajendra Bahadur Singh, be released on bail in the aforesaid case crime number 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:-

(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 fail 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.

(v)  The present applicant shall not leave the country without prior permission of the Court.

Order Date :- June 7, 2022. [Rajesh Singh Chauhan,J.]

Suresh/