Pappu vs State Of U.P.
2022 Latest Caselaw 4178 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8703 of 2022
 

 
Applicant :- Pappu
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mahesh Kumar Kuntal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Counter affidavit is taken on record. Counsel for applicant submits that there is no requirement of filing any rejoinder affidavit.

2. Heard Sri. Mahesh Kumar Kuntal, learned counsel for applicant, Shri. Munne Lal, learned A.G.A. for State and perused the record.

3. 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 orders dated 28.10.2021 and 11.2.2022, passed by Incharge Sessions Judge, Mathura, and Sessions Judge, Mathura in Case Crime No.307 of 2021, under Sections 302, 504, 506, 120B I.P.C., Police Station-Chhata, District-Mathura.

4. Learned counsel for the applicant submits that during intervening night of 25-26.8.2021 at about 2 P.M. when the informant was asleep along with family members in his house, all of a sudden there was a knock at the door and when it was opened, Pappu (applicant), co-accused Mukesh and two unknown persons armed with fire arms with intention to eliminate informant Ramesh aimed his country pistol and fired, but the said gun shot hit his mother who got injured and during treatment she died.

5. Learned counsel for the applicant submits that similarly situated co-accused Mukesh was enlarged on bail by a reasoned order passed by this Court on 17.5.2022 in Criminal Misc. Bail Application No.11248 of 2022, therefore, the applicant is entitled for bail. Operative part of the aforesaid order is mentioned hereinafter:

" Thus, keeping in view the totality of the circumstances and the nature and number of shots of fire upon the deceased and the previous enmity with the informant and further considering that the gun shot is purely accidental in nature, which hit the mother of the informant, I am of the view that the applicant has made out a fit case for bail."

6. It is lastly submitted that the applicant is languishing in jail since 5.10.2021, 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.

7. Aforesaid submissions are opposed by the learned A.G.A. who submits that though the intention was to cause death of first informant. However, his mother had received gun shot injury and died due to fire arm injuries, therefore, fire arm injury cannot be construed to be accidental in nature. However, it was not contradicted that similarly situated co-accused has been granted bail.

8. 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).

9. In the present case, allegations are mentioned in first paragraph of order dated 17.5.2022 that gun shot aimed at the first informant missed and it was received by the mother of the informant who died. The role of the applicant and co-accused Mukesh is prima-facie similar, therefore, considering the principles of desirability of consistency as held in the judgment passed by a Division Bench in the case of Nanha Vs. State of U.P., 1992 SCC Online, All 871, applicant is also entitled for bail on the grounds on which the co-accused Mukesh has been granted bail which is part of this order, therefore, a case of bail is made out.

10. Let the applicant Pappu, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.

(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

11. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

12. The bail application is allowed.

13. The observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 26.5.2022

SB