Rajesh @ Jabbar vs State Of U.P.
2022 Latest Caselaw 3248 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44178 of 2021
 

 
Applicant :- Rajesh @ Jabbar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atharva Dixit,Aushim Luthra,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,M J Akhtar,Saurabh Yadav
 
With 
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43818 of 2021
 

 
Applicant :- Kuldeep Sharma
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atharva Dixit,Aushim Luthra,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,M J Akhtar,Saurabh Yadav
 
With
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43881 of 2021
 

 
Applicant :- Kuldeep
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atharva Dixit,Aushim Luthra,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,M J Akhtar,Saurabh Yadav
 
With
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50517 of 2021
 

 
Applicant :- Vinod
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ajay Kumar Mishra,Kapil Kumar Pandey,Siddhartha Baghel,Virendra Singh
 
Counsel for Opposite Party :- G.A.,M J Akhtar,Saurabh Yadav,M.J. Akhtar
 
With
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51088 of 2021
 

 
Applicant :- Amit
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Virendra Singh,Kapil Kumar Pandey
 
Counsel for Opposite Party :- G.A.,M J Akhtar,Saurabh Yadav
 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Manish Tiwari, Learned Senior Counsel assisted by Aushim Luthra, learned counsel for applicants in Criminal Misc. Bail Application Nos. 44178 of 2021, 43818 of 2021 43881 of 2021, Sri Kapil Kumar Pandey, Virendra Singh, learned counsel for applicants in Bail Application Nos.50517 of 2021 and 51088 of 2021, Shri. Saurabh Yadav, learned counsel for the informant/complainant, Shri Munne Lal, learned A.G.A. for State and perused the record.

2. Applicants have approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of their Bail Applications vide orders dated 23.9.2021 and 27.10.2021 passed by Additional District Sessions Judge/Special Judge, Prevention of Corruption Act, Meerut in Case Crime No.326 of 2021, under Sections 147, 148, 149, 452, 307, 323, 427 and 302 I.P.C., Police Station-Sardhana, District-Meerut.

3. In all these bail applications, case crime number is the same hence they are being decided by this common order.

4. In the present case, it is alleged that the applicants along with other co-accused (19 named) and some unknown persons are facing trial with the allegation that the persons from the complainant side were sitting at their house for purpose of settlement of issue which arose due to election dispute when accused side have formed unlawful assembly and in furtherance of their common intention assaulted many persons from the complainant side with deadly weapons including firearm in which number of persons were injured from the complainant side and later on one injured person succumbed to his injuries.

5. Learned counsel for applicants submitted that the allegations of indiscriminate firing remained inconsistent in the F.I.R. as well as in the statement of the victim recorded during investigation which was found to be absolutely incorrect as no injured person received any firearm injuries as wells no live or used cartridges were recovered from the place of occurrence. He further submitted that on the basis of evidence on record, it appears to be an attack by the mob where identification of attackers was not possible, therefore, it is a case of over implication and a case of pure false implication.

6. In this regard, learned Senior Counsel has relied upon the judgment passed by Supreme Court in the case of Baladin & Ors. Vs. State of Uttar Pradesh, AIR 1956 SC 181. It is lastly submitted that the applicants are languishing in jail since 17.6.2021, 30.6.2021 and 2.9.2021 respectively, there is no likelihood of early disposal of trial and the applicants undertake that if enlarged on bail, they will never misuse their liberty and will co-operate in the trial.

7. Per contra, learned counsel for the first informant/complainant and the learned A.G.A. have opposed the bail application and submitted that it was a case where the accused persons were the aggressor as they formed unlawful assembly having deadly weapons and in furtherance of their common object assaulted persons from the complainant side who were waiting for settlement with the persons from the accused side causing injuries to four persons out of which one person later on died. Cause of death was due to ante mortem head injury.

8.According to post mortem report, Hametoma was present in between scalp and skull and right temporal bone was found fractured as well as there were four surgical stitched wounds. Injured persons also received lacerated wounds caused by hard and blunt object and other injuries were minor in nature.

9. LAW ON BAIL

A. "The basic rule may perhaps be tersely put as bail, not jail" (State Of Rajasthan, Jaipur vs Balchand @ Baliay : (1977 AIR 2447, 1978 SCR (1) 535). Power to grant bail under Section 439 of CrPC, is of wide amplitude. The court is bestowed with considerable but not unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course and not in whimsical manner. (see Ram Govind Upadhyay Vs Sudarshan Singh :(2002) 3 SCC 598 and Neeru Yadav Vs State of U.P.:(2016)15 SCC 422).

B. "The considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out." [Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118)]. "There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, inter-alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused" [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21]. In Manno Lal Jaiswal Vs. The State of U.P. and others, 2022 SCC Online SC 89 Supreme Court has observed that, "when the Accused were charged for the offences punishable under Section 149 of the Indian Penal Code also and when their presence has been established and it is stated that they were part of the unlawful assembly, the individual role and/or overt act by the individual Accused is not significant and/or relevant." In Ashim Vs. National Investigation Agency, (2022) 1 SCC 695, Supreme Court has observed that, "Once it is obvious that timely trial would not be possible and the Accused has suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge him on bail."

C. "....It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge." (Prahlad Singh Bhati vs. NCT of Delhi and Ors:( 2001) 4 SCC 280).

D. "....It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the Judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of Judges to give reasoned decisions lies at the heart of this commitment...." (Mahipal v. Rajesh Kumar, (2020) 2 SCC 118) and also (Ms. Y versus State of Rajasthan and Anr :2022 SCC OnLineSC 458).

E. "....There cannot be elaborate details recorded to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal while passing an order on an application for grant of bail. However, the Court deciding a bail application cannot completely divorce its decision from material aspects of the case such as the allegations made against the accused; severity of the punishment if the allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of the witnesses being influenced by the accused; tampering of the evidence; the frivolity in the case of the prosecution; criminal antecedents of the accused; and a prima facie satisfaction of the Court in support of the charge against the accused." (Manoj Kumar Khokhar Vs. State of Rajasthan & Anr, (2022) 3 SCC501).

10. On the basis of above referred submissions of learned counsel for the rival parties as well as materials available on record, present appears to be a case where the applicants were aggressors and by forming unlawful assembly assaulted persons from the complainant side who were waiting for settlement. In this incident one person died due to multiple injuries on head and other parts of body as well as three other persons were injured also. There are injured eye witnesses account to this incident also. It is possible that there are certain exaggerations to the manner of assault with the allegations of indiscriminate firing. However, the presence of applicants at the place of occurrence as well as the nature of evidence in respect of the prosecution story about forming unlawful assembly and assaulting the persons from the complainant side appears to be cogent and also taking note of the judgment passed by the Supreme Court in the case of Manno Lal Jaiswal Vs. The State of U.P. and others (supra), I do not find it a fit case case to grant bail.

11. Bail applications are rejected.

Order Date:-18.5.2022

SB