Mohammad Rehan Alias Babu Bhai ... vs State Of U.P.
2022 Latest Caselaw 2341 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44939 of 2021
 

 
Applicant :- Mohammad Rehan Alias Babu Bhai Tenri Wale
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Nasira Adil,Mohd Zubair,Sheshadri Trivedi,Sr. Advocate
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned A.G.A. has filed counter affidavit today, which is taken on record.

Heard Shri Satish Trivedi, learned Senior Counsel assisted by Shri Sheshadri Trivedi, learned counsel for the applicant and Shri Manoj Kumar Dwivedi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Mohammad Rehan alias Babu Bhai Tenri Wale under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 19 of 2020 for offence punishable under Sections 147, 148, 149, 307, 452, 354, 392, 302, 120-B of the Indian Penal Code, registered at Police Station Chakeri, District Kanpur Nagar, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Kanpur Nagar vide order dated 27.9.2021.

Brief facts of the case are that the First Information Report dated 10.1.2020 has been lodged by sister of the deceased Ruby under Sections 147, 148, 149, 307, 452, 354, 392, IPC against the applicant, eight named persons and three unknown persons stating therein that on 9.1.2020 at 6.45 p.m. applicant and other co-accused persons having Chapar, iron rod and danda in their hands, entered into the house of the first informant and molested women of the house. After objection being made by them, they assaulted them by Chapar, axe and butt of the country made pistol due to which her sister Zareena Khan and Ruby have sustained serious injury and their treatment are going on in the hospital. The applicants and other persons snatched the phone of the first informant.

After lodging of the first information report, medical examination of the deceased Ruby and Zareena Khan was conducted on 9.1.2020. After death of injured Ruby on 17.1.2020, inquest of the body of the deceased was conducted on 17.1.2020 at 13.10 hours at Hallet Hospital, Kanpur Nagar on the information of Ward Boy Vinod Kumar. Postmortem of Ruby was also conducted on 17.1.2020 at 2.55 p.m. As per postmortem report of the deceased, six injuries like as contusion, abraded contusion, blackish contusion, blackish abraded contusions were found on the person of the deceased over forehead, left eyebrow and both knees. Cause of death was coma due to anti mortem head injury. After recording the statements of the first informant, injured witness Zareena Khan, other eye witnesses and prosecution witnesses under Section 161, Cr.P.C., charge sheet against named co-accused Mintu, Abid, Mehboob and Mehfooz and three unknown persons namely, Basheer, Sogra Khatoon and Smt. Afsana has been submitted on 8.4.2020 and investigation is pending against named co-accused Chand Babu. The Investigating Officer exonerated four named co-accused persons including the applicant. In the further investigation, which was closed on 11.5.2020, no evidence have been collected against the applicant. After that supplementary charge sheet has been filed in the present case against the applicant on 31.10.2021 on the basis of second statement of first informant Ruksana Khan and other eye witness Zareena, Mantasa and Parveen, which have been recorded on 30.8.2021. The applicant was arrested on 13.9.2021.

Learned Senior Counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further argued that in their first and second statements, injured and eye witnesses have not assigned any weapon to the applicant for giving assault to the deceased Ruby. It is further submitted that the injuries of the deceased like as multiple abrasions, traumatic swelling have been caused by sharp and blunt object. It is further submitted that motive has been assigned by the first informant to the named co-accused Mehfooz, Mintu, Abid and Zameel, but after completing the investigation, Zameel has been exonerated in the main charge sheet. It is further submitted that one first information report has been lodged by the sister of the first informant on 31.1.2018 under Sections 323, 336, 354Kha, IPC and Section 11, 12 of the Protection of Children from Sexual Offences Act against co-accused Mehfooz, Mintu, Abid and Zameel. It is further argued that there is no motive against the applicant. It is further argued that on the same set of allegation named co-accused Firoz, Zameel, Vicky have been exonerated by the Investigating Officer.

He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. 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) First information report has been lodged against nine named persons including the applicant by the eye witness;

(b) Incident took place on 9.1.2020 at 6.45 p.m.;

(c) In the first medical report of the deceased, which was conducted on 9.1.2020, two lacerated wounds were found. As per postmortem report, six injuries including multiple abrasions were found on the person of the deceased;

(d) Motive has been assigned to the co-accused Mehfooz, Mintu, Abud and Zameel;

(e)Three other named persons Firoz, Zameel and Vicky have been exonerated by the Investigating Officer including the applicant;

(f) After further investigation, matter was closed against the applicant on 11.5.2021;

(g) Supplementary charge sheet has been filed in the present case against the applicant on 31.10.2021.

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 bail application is allowed.

Let applicant, Mohammad Rehan alias Babu Bhai Tenri Wale 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 alongwith 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 :- 9.5.2022

T. Sinha