Kalim vs State Of U.P.
2022 Latest Caselaw 3875 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7301 of 2022
 

 
Applicant :- Kalim
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Santosh Kumar Chaubey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Santosh Kumar Chaubey, learned counsel for applicant and Shri. K.P. Pathak, learned A.G.A. for State and perused the record.

2. Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 15.1.2022, passed by Incharge Sessions Judge, Amroha in Case Crime No.439 of 2020, under Sections 302 and 120-B I.P.C., Police Station-Hasanpur, District-Amroha.

3. According to the contents of F.I.R. named accused including the applicant along with unknown persons were seen running away from the place where brother of the first informant was found in an injured condition who was brought dead at the hospital. According to post mortem report, immediate cause of death was Haemorrhage and Shock due to ante mortem fire arm injury.

4. Learned counsel for the applicant submits that there was a delay of 10 hours in lodging the F.I.R. which remained unexplained. No one has witnessed the occurrence. There are ambiguity in the injury report as well as in the post mortem report in regard to the fire arm injuries. The evidence against the applicant is in the nature of confessional statement as well as extra judicial confessional statement. During investigation, name of the accused persons were disclosed belatedly and the co-accused Salim and Tasleem @ Bhola have already been granted bail by this Court. It is lastly submitted that the applicant is languishing in jail since 6.9.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.

5. The above submissions are opposed by the learned A.G.A. who submits that the applicant and other co-accused were seen before the occurrence and the applicant was carrying a country made pistol and in this regard statement is recorded by an independent witness. The informant has also named accused persons who were seen around the time when the occurrence took place. A country made pistol was also recovered from the pointing of the applicant. However, it is not disputed that the two co-accused have been granted bail.

6. 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."

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).

7. In the present case, F.I.R. was lodged against named persons including the applicant after about ten hours. However, it is relevant to note that brother of the first informant died as such the said delay could not be considered to be unexplained.

8. Bail orders whereby the co-accused has been granted bail are not supported by any specific reasons. The applicant was seen carrying a country made pistol which was allegedly recovered from his pointing out which is corroborated with the post mortem report.

9. So far as submission that there is ambiguity in regard to the injury is concerned, it could be considered at the stage of trial.

10. There are other evidence of independent witnesses which indicates involvement of applicant and considering the judgment of the Supreme Court in the case of Manoj Kumar Khokhar Vs. State of Rajasthan & Anr, (2022)3 SCC501), no ground of parity is made out and also considering specific role of the applicant that country made pistol used in the crime was recovered from the applicant which is corroborated from the post mortem, report and that the applicant was specifically identified, therefore, no case of bail is made out.

11. Bail application is rejected.

Order Date :- 24.5.2022

SB