Naushad vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 12687 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 657 of 2023
 

 
Appellant :- Naushad
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 2 Others
 
Counsel for Appellant :- Alok Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard Sri Alok Singh, learned counsel for the appellant, Sri Himanshu Suryavanshi, learned Brief Holder for the State and perused the entire record.

2. This Criminal Appeal under Section 14-A (2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 07.01.2023 passed by the learned Special Judge, S.C./ S.T. Act, Pratapgarh in Bail Application No.3903 of 2022 "Naushad vs. State of U.P." arising out of Case Crime No.185 of 2021, under Sections 302/34, 120-B, 201 I.P.C. and Sections 3(1)Da, 3(1)Dha, 3(2)v, 3(2)va S.C./ S.T. Act, Police Station Hathigawan, District Pratapgarh, whereby the bail application of the appellant has been rejected.

3. Learned Brief Holder for the State, on the basis of instructions received by him, states that the notices have already been served upon respondents No.2 and 3. However, no one has put in appearance on behalf of respondents No.2 and 3.

4. Learned counsel for the appellant has submitted that the first information report has been lodged against the appellant on the basis of false and fabricated facts. The accused/ appellant is innocent who has been falsely implicated in this case.

5. His further submission is that the appellant was not named in the first information report. The case, as has been evolved and developed by the prosecution, is based on circumstantial evidence as there is no eye-witness of the alleged incident of killing of the deceased. Admittedly, the case is based on circumstantial evidence, however, chain of events are not so closely knit so as to indicate guilt of the present appellant only at this stage.

6. It is also submitted by learned counsel for the appellant that the name of appellant has surfaced in the statement of a witness, namely, Lalla Yadav recorded under Section 161 Cr.P.C., which is available at page No.22 to this appeal. He has also submitted that no incriminating article or weapon of assault has been recovered from the possession of the appellant or on his pointing out.

7. His further submission with vehemence is that the co-accused persons, namely, Sapna Saroj, Nadeem, Dabbu Saroj, Govinda Saroj, Shiva @ Shiv Kumar and Mohit Saroj have already been granted bail by this Court vide order dated 14.07.2022 passed in Criminal Misc. Bail Application No.133 of 2022 titled as Sapna Saroj vs. State of U.P., vide order dated 11.10.2022 passed in Criminal Appeal No.406 of 2022 titled as Nadeem vs. State of U.P. and another, vide order dated 21.10.2022 passed in Criminal Misc. Bail Application No.11215 of 2022 titled as Dabbu Saroj and another vs. State of U.P. and vide order dated 17.08.2022 passed in Criminal Misc. Bail Application No.3302 of 2022 titled as Shiva alias Shiv Kumar and another vs. State of U.P. respectively.

8. His next submission is that the cause of death of the deceased is reported to be traumatic asphyxia due to ante mortem neck injury. The accused/ appellant is languishing in jail since 23.08.2022, who has no previous criminal history.

9. His further submission is that in case, the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial court in getting the trial concluded expeditiously. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

10. For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed. The impugned order dated 07.01.2023 passed by the learned Special Judge, S.C./ S.T. Act, Pratapgarh in Bail Application No.3903 of 2022 "Naushad vs. State of U.P." arising out of Case Crime No.185 of 2021, under Sections 302/34, 120-B, 201 I.P.C. and Sections 3(1)Da, 3(1)Dha, 3(2)v, 3(2)va S.C./ S.T. Act, Police Station Hathigawan, District Pratapgarh, deserves to be set aside and consequently, the accused/ appellant deserves to be enlarged on bail during pendency of the trial.

11. Per contra, learned Brief Holder has vehemently opposed the prayer by submitting that the accused/ appellant has committed a heinous offence. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserves to be dismissed. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the appellant including the fact that the co-accused persons, namely, Sapna Saroj, Nadeem, Dabbu Saroj, Govinda Saroj, Shiva @ Shiv Kumar and Mohit Saroj have already been granted bail by this Court vide order dated 14.07.2022 passed in Criminal Misc. Bail Application No.133 of 2022 titled as Sapna Saroj vs. State of U.P., vide order dated 11.10.2022 passed in Criminal Appeal No.406 of 2022 titled as Nadeem vs. State of U.P. and another, vide order dated 21.10.2022 passed in Criminal Misc. Bail Application No.11215 of 2022 titled as Dabbu Saroj and another vs. State of U.P. and vide order dated 17.08.2022 passed in Criminal Misc. Bail Application No.3302 of 2022 titled as Shiva alias Shiv Kumar and another vs. State of U.P. respectively.

12. Having heard the learned counsel for the appellant, learned Brief Holder for the State and upon perusal of record, it transpires that the appellant was not named in the first information report. However, upon conclusion of investigation, a charge sheet came to be filed against the accused/ appellant. The name of appellant has surfaced in the statement of a witness, namely, Lalla Yadav recorded under Section 161 Cr.P.C., which is available at page No.22 to this appeal. No incriminating article or weapon of assault has been recovered from the possession of the appellant or on his pointing out. The cause of death of the deceased is reported to be traumatic asphyxia due to ante mortem neck injury. The accused/ appellant is languishing in jail since 23.08.2022, who has no previous criminal history. The co-accused persons, namely, Sapna Saroj, Nadeem, Dabbu Saroj, Govinda Saroj, Shiva @ Shiv Kumar and Mohit Saroj have already been granted bail by this Court vide order dated 14.07.2022 passed in Criminal Misc. Bail Application No.133 of 2022 titled as Sapna Saroj vs. State of U.P., vide order dated 11.10.2022 passed in Criminal Appeal No.406 of 2022 titled as Nadeem vs. State of U.P. and another, vide order dated 21.10.2022 passed in Criminal Misc. Bail Application No.11215 of 2022 titled as Dabbu Saroj and another vs. State of U.P. and vide order dated 17.08.2022 passed in Criminal Misc. Bail Application No.3302 of 2022 titled as Shiva alias Shiv Kumar and another vs. State of U.P. respectively.

13. Considering the aforesaid overall facts and circumstance of the case, without expressing any opinion on merit, this Court of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

14. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 07.01.2023 passed by the learned Special Judge, S.C./ S.T. Act, Pratapgarh in Bail Application No.3903 of 2022 "Naushad vs. State of U.P." arising out of Case Crime No.185 of 2021, under Sections 302/34, 120-B, 201 I.P.C. and Sections 3(1)Da, 3(1)Dha, 3(2)v, 3(2)va S.C./ S.T. Act, Police Station Hathigawan, District Pratapgarh, is, hereby, set aside.

15. Let the appellant, Naushad be released on bail in the aforesaid case crime number with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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 of the Indian Penal Code.

(vii) The appellant shall remain present, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant 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.

(Ajai Kumar Srivastava-I, J.)

Order Date :- 25.4.2023

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