Rakesh vs State Of U.P.
2023 Latest Caselaw 12331 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9800 of 2023
 

 
Applicant :- Rakesh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ramanuj Yadav
 
Counsel for Opposite Party :- G.A.,Sanjay Singh Sengar
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Ramanuj Yadav, learned counsel for applicant and Sri Sunil Srivastava, learned AGA for State.

2. Applicant-Rakesh has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 267 of 2022, under Sections 302, 506, 34 IPC, Police Station Kulpahar, District Mahoba, after rejection of his bail application vide order dated 25.11.2022 passed by Sessions Judge, Mahoba.

3. Contents of FIR are that on 30.09.2022 at about 10.00 AM when informant's cousin and his aunt were going for bath towards Beda they were intercepted near Panchayat Bhawan by three named accused persons, who were on Tractor and they tried to dash it towards them. Accused, Rakesh was carrying a licensed weapon as well as an unlicensed weapon whereas co-accused, Komal was carrying Farsa and accused, Dharmendra was driving Tractor. Informant further alleged that accused, Rakesh fired a shot on Ravindra, who sustained injury which resulted in his death. His aunt has snatched phone and key of Tractor from accused-Dharmendra. According to post mortem report immediate cause of death was opined to be shock and haemorrhage as a result of ante mortem firearm injuries.

4. Learned counsel for applicant submits that it is a case of false implication. Deceased died due to single firearm injury. According to contents of FIR role of firing was assigned to applicant as well as applicant was assigned as double barrel gun. However, statement of doctor recorded during investigation specifically indicates that firearm injury was caused by 315 bore country made pistol, therefore, applicant was not involved in crime. Learned counsel further submits that co-accused, Dharmendra and Komal have already been granted bail by this Court. He also submits that recovery was planted by police and it is not in presence of any independent witness. Applicant is working as a Constable in CRPF and it was a case of false implication due to prior enmity in election of Village Pradhan.

5. Learned AGA appearing for State opposed prayer for bail and submits that nature of injury could be caused by weapon assigned to applicant. Eye witness has stated in her statement recorded under Section 161 Cr.P.C. that after getting out from Tractor both applicant and co-accused, Dharmendra have fired. Weapon used in crime is recovered on pointing out of applicant. Plea of false implication would be considered only in trial. However, it is not disputed that two co-accused have already been granted bail by this Court though it is said that reasons given in bail orders are not in terms of judgments passed by Supreme Court in Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501 and Brijmani Devi vs. Pappu Kumar (2022) 4 SCC 497.

6. LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

7. In the present case, two co-accused have been granted bail. Reasons given in bail orders dated 11.01.2023 and 07.02.2023 of Komal and Dharmendra, respectively are reproduced as under:

Bail Order dated 11.01.2023-Komal

"Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed."

Bail Order dated 07.02.2023-Dharmendra

"Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions..."

8. In above referred orders both applicants therein were enlarged on bail apparently on the basis of role assigned to them that present applicant was assigned main role of causing death. However, in the present case applicant is trying to distinguish his case from co-accused, Dharmendra that nature of firearm injury could be attributed to weapon assigned to co-accused and not the weapon assigned to applicant. In this regard argument of learned AGA is contrary that injury could be caused from shot of a double barrel gun also.

9. However, at this stage, Court is not going into dispute with regard to nature of firearm injury and weapon since other two co-accused have already been granted bail though reasons thereof may not be in terms of judgments passed by Supreme Court in Manoj Kumar Khokhar (supra) and Brijmani Devi (supra), still it cannot be said at this stage conclusively that nature of injury could be attributed to the weapon assigned to applicant, i.e., double barrel gun. Therefore, applicant, who is in jail since 15.10.2022, has made out a case of bail.

10. However, applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately.

11. Let the applicant-Rakesh be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions which are being imposed in the interest of justice:-

(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 shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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.

(iii) 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.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.

12. 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.

13. The bail application is allowed.

14. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 21.4.2023

AK