Allahabad High Court
Mehtab vs State Of U.P. on 10 April, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved -: 04.04.2023
Delivered -: 10.04.2023
Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2120 of 2023
Applicant :- Mehtab
Opposite Party :- State of U.P.
Counsel for Applicant :- Akash Tomar,Vivek Singh
Counsel for Opposite Party :- G.A.,Swetashwa Agarwal
Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant - Mehtab has approached this Court for bail in Case Crime No. 95 of 2021 under Sections 147, 148, 149, 323, 302, 34, 447, 307, 427 and 506 I.P.C., Police Station- Falavda, District- Meerut.
2. Applicant has earlier approached this Court by way of filing a Bail Application No. 49828 of 2021 and vide order dated 18.01.2022, bail was granted with following reasons :-
"Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
I see merit in the submissions of learned counsel for the applicant and accordingly hold that the applicant is entitled to be enlarged on bail.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed."
3. Informant/complainant being aggrieved by above order filed Criminal Appeal No. 1509 of 2022 before Supreme Court. The appeal was allowed by an order dated 05.09.2022 and impugned order therein was set aside. The said order was followed in other criminal appeals also and bail granted to other co-accused were also set aside.
4. The applicant within few months filed a fresh bail application before Trial Court, however, the same was rejected by an order dated 11.11.2022.
5. Thereafter, the applicant has approached this Court again by way of present bail application.
6. Sri Vivek Singh, learned counsel for applicant submits that :-
i. Supreme Court has set aside the earlier order of bail mainly on the ground that it was an unreasoned order and important factors were not noticed, therefore, this Court may consider present bail application on merit and not only on the basis of subsequent events.
ii. Learned counsel read out the order passed by the Supreme Court that there was only a reference of facts of case and Court's observation on it but the criminal appeal was allowed only on the ground that impugned order therein was bereft of reasoning.
iii. Learned counsel on merit of case has submitted that there are 13 named accused, however, none of them has been assigned any specific role.
iv. There are five injured witnesses, however, they have also not assigned any specific role to applicant as well as to other co-accused persons and no weapon was assigned either. On belated stage, specific role is assigned to only one co-accused Vikas.
v. Learned counsel submitted that assailants alleged to be co-villagers and injured witnesses remained during the period of occurrence. Still they have not able to describe the manner of assault and there was a delay in lodging an F.I.R. As such it is a case of false implication.
vi. Incriminating material or weapon was neither recovered from applicant in person nor on his pointing out.
vii. Alleged occurrence was occurred in midnight and since it was a dark night, the assailants were not identified.
viii. Applicant is a 65 years old person, as such allegations of his active participation in crime are improbable.
ix. Injured persons have received injuries mainly on non-vital part. Therefore, applicant, who is in jail since 26.09.2022 may be released on bail.
7. Sri Rishi Chhadha, learned A.G.A. for State and Sri Swetashwa Agarwal, learned counsel for informant have submitted that Supreme Court has decided the appeal on merit and has pointed out that relevant factors were not considered. Both learned counsel have pointed out that other orders arising out of present case have been set aside and that Supreme Court has decided the case on merit, therefore, this bail application can be considered only on the basis of subsequent event and since no subsequent event has been brought on record, therefore, this application is liable to be rejected.
8. In order to consider rival submissions, I have carefully perused the order passed by Supreme Court.
9. In Criminal Appeal no. 1509 of 2022 (Yashpal Singh vs. State of U.P. and another), the Supreme Court has specifically observed that the Supreme Court has gone through the allegations made in F.I.R. and has noted the allegations made therein that on earlier night, the accused persons have run their tractor on standing crop and tried to take possession of land and when persons from complainant side reached place of occurrence, the accused persons assaulted them in which brother of informant died and five persons were seriously injured.
10. The Supreme Court has also considered that the incident was occurred in dark night and considered the contention that it was not possible to identify accused and proceeded further to observe that since persons were known to complainant and there was prior enmity, therefore, it could not have been concluded that it was not possible to identify the accused.
11. The Supreme Court has also observed that complainant has speicifically named the accused persons as well as that in his statement recorded under Section 161 Cr.P.C., he stood by what he has stated in F.I.R.
12. The Supreme Court has, similarly in Criminal Appeal No. 812 of 2023 (Yashpal vs. State of U.P. and another) along with other connected criminal appeals, arising out of present case, followed the judgment passed in earlier criminal appeal and has also held that all the accused were part of unlawful assembly and the independent overt act cannot be a ground to release the accused on bail, once they are found to be part of the unlawful assembly as well as that nature of allegations and gravity of offences were factors on which the Supreme Court has passed the orders whereby bail granted to applicant and other co-accused were cancelled.
13. From the above observations, it transpires that the Supreme Court has considered the case of applicant and other co-accused persons on merit and arguments raised herein were considered and rejected also. The Supreme Court has, in specific words, held that essential factors were not considered and held that it was a very serious offence in which applicant and all other co-accused were present and participated and therefore, their respective bail were cancelled. Therefore, the submission of learned counsel for applicant that this application may be considered on merit is legally unsustainable, therefore, rejected.
14. The Supreme Court has cancelled the bail of the applicant on 15.09.2022 i.e. just 6 months prior and applicant has not able to brought on record any subsequent event which requires consideration.
15. The applicant was arrested on 10.07.2021 and was granted bail by the Court on 18.01.2022 (about 5 months) and after Supreme Court has cancelled the bail, the applicant is confined behind bars since 26.09.2022 (about 6 months) i.e. he has been in jail just about one year, whereas allegations are of murder, therefore, it would not amount to prolong detention.
16. In these circumstances, while rejecting the prayer for bail of applicant, this application is disposed of with direction that Trial Court shall take all endeavour to conclude the trial expeditiously.
Order Date :- April 10, 2023
Nirmal Sinha
[Saurabh Shyam Shamshery, J.]
