Navneet vs State Of U.P.
2023 Latest Caselaw 12828 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 27.03.2023
 
Delivered on 26.04.2023
 
Court No. - 77
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18194 of 2021
 
Applicant :- Navneet
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Amar Jeet Upadhyay,Syed Shahnawaz Shah
 
Counsel for Opposite Party :- G.A.,Sunil Kumar Tiwari
 

 
Hon'ble Raj Beer Singh,J.

1. Heard learned counsel for the applicant and learned AGA for the State. None has appeared on behalf of the informant.

2. At the outset it may be observed that earlier this bail application was allowed by this Court vide order dated 10.08.2021. The informant of the case has challenged the said bail order before the Hon'ble Apex Court vide Criminal Appeal No. 1386 of 2022, wherein, by order dated 26.08.2022 Hon'ble Apex Court has set aside the bail order dated 10.08.2021 by making following observations:-

"A perusal of the order impugned makes out that the High Court recorded the submissions made on behalf of the accused and then, recorded that the Government counsel had opposed the prayer for bail and immediately thereafter, the High Court expressed its opinion that the bail application was required to be allowed, looking to the facts and circumstances of the case and the nature of evidence and all attending facts and circumstances.

In the case of the present nature, involving offences under Sections 302, 201 and 34 IPC with certain basic evidence having been suggested by the prosecution against the respondent No. 2; and the respondent No. 2 having his own grounds to seek bail, in our view, it was requisite that the High Court indicated at least prima facie reasons for which, it was considered appropriate to grant bail.

In the aforesaid view of the matter, without elaboration on the merits of the case, we deem it appropriate to set aside the order impugned and to restore the bail application for consideration afresh by the High Court. It is also noticed that the impugned order was passed on 10.08.2021 and therefore, the respondent No. 2 is on bail for about a year. Hence, in the totality of circumstances, as at present, we do not find it justified to direct the respondent No. 2 to surrender immediately but while making it clear that whether he is remain on bail or not shall ultimately depend on the final decision of the bail application by the High Court.

Accordingly, and in view of the above, this appeal succeeds to the extent and in the manner indicated above; the impugned order dated 10.08.2021 is set aside; and Criminal Miscellaneous Bail Application No. 18194 of 2021 is restored for re-consideration of the High Court.

We would request the High Court to assign a reasonable priority to the matter and to take a decision on the restored bail application expeditiously.

The parties through their respective counsel shall stand at notice to appear before the High Court on 26th September, 2022.

In the interest of justice, it is made clear that we

have not pronounced on the merits of the case either way; and all the submissions and objections of the parties remain open to be advanced before the High Court. Similarly, no observation herein shall be of any bearing on the trial of the sessions cases related with this matter; and the Trial Court shall also be expected to proceed with the matter on its own merits, and expeditiously.

This appeal stands disposed of accordingly.

All pending applications also stand disposed of."

3. In compliance of above-stated order of the Hon'ble Apex Court, the matter was heard afresh.

4. Perusal of record shows that the first information report was lodged on 20.02.2021 by the chaukidar of the village Gyanpur, police station Bhavanpur, District-Meerut, alleging that on 18.02.2021 a dead body of some unknown person was lying in the way of village Pachpeda, Aurangabad, Meerut and the said dead body is having the sign of bullet injury. During investigation, the said dead body was identified to be of Abhinav Chaudhary (hereinafter referred to as ''Deceased').

5. In postmortem report of deceased Abhinav Chaudhary, following injuries have been shown:

A fire arm entry wound in form of contused laceration measuring 1x1cm x chest cavity deep was present on Lt side of chest, And 135 cm above from the heel. The margins inverted, blackening was present. On probing and dissection the track passes through Lt chest perforating the intercostals muscles then perforating the lower lob of Lt lung and Lt ventricle of the heart and then passing through the posterior intercostal muscles where bullet was found embedded.

The cause of death was Shock and hemorrhage as a result of ante-mortem fire arm injury which is fresh prior to death in duration and sufficient to cause death in ordinary course of nature.

6. On 20.02.2021 the mother of deceased has submitted a tehreer alleging that on 17.02.2021 one Harsh Tyagi has made a telephonic call to the deceased and at that time deceased was on the roof of the house. She called the deceased and the deceased made a telephonic call to his friend Harsh Tyagi and later on he told his mother that he was being called by Harsh Tyagi and he went from his home. She has further alleged that when deceased did not return for two hours, she made a telephonic call at the mobile phone of deceased but it was not attended. After that she made a telephonic call to Harsh Tyagi and he told that deceased has gone to Delhi for some interview and disconnected the call. She again called back to Harsh Tyagi but he did not reply the call. On next day, the mother of deceased lodged a missing report at police station Medical College, district Meerut. In the evening, one of her known person sent the photo of a dead body on her whats-app and she found that it was of her son Abhinav Chaudhary. Her husband along with other family members went to mortuary and identified the dead body of Abhinav Chaudhary. She has further alleged that earlier accused persons, namely, Harsh Tyagi, Akki @ Goldi and Navneet (applicant) have an scuffle with the deceased, due to which her son used to remain under fear and that since last 3-4 days, co-accused Akki @ Goldi, along with applicant and co-accused Harsh Tyagi, was taking rounds around her house in his car and thus, she suspects that accused persons, namely, Harsh Tyagi, Akki @ Goldi and Navneet (applicant) have committed murder of her son Abhinav Cahudahary.

7. It appears that during investigation, applicant-accused Navneet was arrested by the police on 20.02.2021 and a country made pistol along with one live cartridge was recovered from him. Applicant disclosed to the police that earlier a quarrel has taken place between the deceased and the co-accused Harsh Tyagi and Akki @ Goldi and that on17.02.2021 the co-accused Harsh Tyagi and Akki @ Goldi have asked him to call the deceased and thereafter he called the deceased to Mangal Pandey Nagar at gate no. 3, by making a telephonic call. Co-accused Akki @ Goldi was also standing there with his car. Co-accused Harsh Tyagi and Akki @ Goldi told the deceased to forget the previous incident and stated that they would go for some fun and thereafter all the three accused persons and the deceased sat in the car of co-accused Akki @ Goldi and reached near the drainage of B.N.G. school. Co-accused Akki @ Goldi stopped the car there and all the three accused persons came out from the car. Co-accused Harsh Tyagi caught the hands of deceased AbhinavChaudahary and that co-accused Akki @ Goldi took out a pistol and fired a bullet at the deceased and resultantly the deceased sustained bullet injuries and he fell down and died. Thereafter, all the three accused persons put the dead body into the car and went to the way of village Pachpeda and thrown the dead body there in dark.

8. It has been argued by learned counsel for the applicant-accused that applicant is innocent and he has been falsely implicated in this case. The applicant or any of the co- accused was not named in the missing report, which was lodged by the mother of deceased. In her tehreer dated 20.02.2021, the mother of the deceased has alleged that co-accused Harsh Tyagi has made a telephonic call to the deceased and that deceased has left the home by saying that he was going to meet co-accused Harsh Tyagi and thus, there is no evidence that deceased was called by applicant-accused. It was submitted that applicant was arrested from his house on 18.02.2021 at 11.14 hours and recovery of a country made pistol and cartridge was planted upon him. There is no independent witness of alleged recovery. The applicant has been falsely implicated in this case merely on the basis of call detail record but the Investigating Officer has not produced the call details record of the deceased and did not obtain the CCTV footage of relevant places to connect the applicant with the alleged incident. During investigation, statement of one Sanjay Singh was recorded, who is maternal uncle of the deceased, who stated that on 17.02.2021 he came at the house of his sister and that in the evening while he was going to Mangal Pandey Nagar, he has seen that applicant-accused and co-accused persons, along with deceased, were going in the Maruti car towards Jail Chungi. It was submitted that his statement is thoroughly false and unreliable. If he might have seen the deceased along with accused persons, this fact must have been mentioned in the missing report lodged by the mother of deceased on the next day of the incident. Further, there is delay of 9 days in recording his statement, which also casts a doubt on the veracity of his version. The attending facts and circumstances of the case show that said witness Sanjay Singh, who is maternal uncle of the deceased, has been introduced during investigation in order to create evidence of ''last seen'. The confessional statement made by applicant-accused to the police is of no consequence, as in pursuance of his confessional statement, no recovery was made and thus, the statement of applicant made to the police is hit by the provision of Section 25 of Indian Evidence Act. Even according to the statement of accused persons, the role of firing of bullet at deceased has been assigned to the co-accused Harsh Tyagi and no specific role has been assigned to the applicant. It is further submitted that there is no motive on part of the applicant to commit murder of deceased or to cause any harm to him. There is no eye witness of the alleged incident. Applicant is a student of graduation and he has no previous criminal history. Referring to the facts of the matter, it was submitted that there is no credible evidence against the applicant. Lastly, it was submitted that applicant was granted bail by this Court vide order dated 10.08.2021 and he has never misused the liberty of bail.

9. On the other hand, learned AGA has opposed the bail and argued that there is evidence to show involvement of applicant in the incident. During investigation, it was found that the deceased was called by the applicant - accused by making a telephonic call. The applicant-accused has confessed before the police that he was involved in the incident. It was further submitted that on the day of incident, the applicant along with co-accused persons was seen with deceased at Jail chungi and thus, the deceased was last seen with the applicant and the co-accused persons. It is further submitted that afer the incident, the applicant along with co-accused persons has made extra-judicial confession.

10. I have considered rival submissions and perused the record.

11. Before proceeding further it may be observed that in case of State through C.B.I vs. Amaramani Tripathi- [(2005) 8 SCC 21], the Apex Court held that a Court granting bail to an accused, must apply its mind and go into the merits and evidence on record and determine whether a prima-facie case was established against the accused. It was held that the seriousness and gravity of the crime was also a relevant consideration. The Hon'ble Apex Court has, in a catena of judgments, outlined the considerations on the basis of which discretion under Section 439 CrPC has to be exercised while granting bail. In landmark judgment of Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118, the Apex Court has laid down various parameters which must be considered while granting bail. The Court held as follows:

"24. ...Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code 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."

12. The above factors do not constitute an exhaustive list. The grant of bail requires the consideration of various factors which ultimately depends upon the specific facts and circumstances of the case before the Court. 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 [see State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21].

13. It is also to be kept in view that at the stage of granting bail, the Court is not required to enter into a detailed analysis of the evidence in the case. Such an exercise may be undertaken at the stage of trial. In case of Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the Court held as under:

"9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

xxx xxx xxx

10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal....."..

14. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, the court followed the observations made in Prasanta Kumar Sarkar (supra) and held as follows:

"17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non­application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment..."

15. A three Judges' Bench of the Apex Court in Jagjeet Singh & Ors. V. Ashish Mishra @ Monu & Anr. in Criminal Appeal No. 632 of 2022, has reiterated the factors that the Court must consider at the time of granting bail under Section 439 CrPC, as well as highlighted the circumstances where this Court may interfere when bail has been granted in violation of the requirements under the above-mentioned section. The Court observed as follows:

"28. We may, at the outset, clarify that power to grant bail under Section 439 of CrPC, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court of the Sessions Court must grant bail after the application of a judicial mind, following well established principles, and not in a cryptic or mechanical manner."

16. In case of Kalyan Chandra Sarkar V Rajesh Ranjan alias Pappu Yadav & Anr. - [(2004) 7 SCC 528], the Court held that although it is established that a Court considering a bail application cannot undertake a detailed examination of the evidence and make an elaborate discussion on the merits of the case, the Court is required to indicate the prima facie reasons justifying the grant of bail.

17. Keeping the aforesaid aforesaid legal position in view, in the instant case it may be observed that as per the prosecution version on 17.02.2021 the deceased has received telephonic call from his friend Harsh Tyagi (co-accused) and thereafter, deceased has left his home by saying that he was going to meet his friend Harsh Tyagi but after that deceased did not return back. On 18.02.2021 a missing report was lodged but neither the applicant nor any other co-accused was named therein. On the same day, dead body of deceased was found in the jungle of village Pachpeda, Aurangabad. As noted earlier, the said dead body was identified to be of Abhinav Chaudhary. During investigation, on 20.02.2021 the mother of deceased has submitted a tahreer (written application) to the police, wherein, it was alleged that earlier a quarrel has taken place between the deceased and the accused persons, due which the deceased used to remain in fear but it was not clarified that when and where such quarrel has taken place. Further, in the same tahreer, the mother of deceased has stated that deceased has gone from home saying that he is being called by his friend Harsh Tyagi and he is going to meet him. Though, in the said tahreer it was also alleged before the incident, the co-accused Akki @ Goldi, along with the applicant and co-accused Harsh Tyagi, was seen taking rounds around her house but no specific date or time of said incident has been mentioned and this version is not supported by any independent witness. The said car is stated of co-accused Akki @ Goli and as per the tahreer of mother of deceased, the deceased has left home saying that he is being called by the co-accused Harsh Tyagi. Admittedly there is no eye witness of the incident. During investigation, statement of one Sanjay Singh was recorded, who has inter-alia stated that on 17.02.2021 he has seen the deceased along with the applicant and the co-accused Harsh Tyagi and Akki @ Goldi in a car, while they were going towards Jail chungi, Meerut. Said Sanjay Singh is maternal uncle of deceased and his statement was recorded after 9 days of the incident. It was submitted that this long delay in recording his statement show that this witness may have been introduced to create ''last seen' evidence. As per prosecution version on 20.02.2021 the applicant and co-accused persons have made an extra-judicial confession before Naveen Chaudhary and Pawan Chaudhary and they confessed that they have killed the deceased. Said Naveen Chaudhary and Pawan Chaudhary are none but father and uncle of deceased Abhinav Chaudhary and thus, it is highly improbable that the accused persons would go to the father and uncle of deceased and would confess their guilt. Further, their statements were recorded with long delay on 07.03.2021. There are no such cogent reasons as to why the accused persons would go to him and would confess that they have committed murder of deceased. So far the alleged recovery of country made pistol from the applicant is concerned, there is no independent witness of alleged recovery and there is also no such FSL report that this pistol was used in the incident. The deceased has sustained only one bullet injury. As per the statement of the accused persons, the earlier dispute was between the deceased and the co-accused Akki @ Goldi and Harsh Tyagi and that the sole bullet injury sustained by the deceased was caused by the co-accused Akki @ Goldi and role of catching hold of deceased was assigned to co-accused Harsh Tyagi. As per statement of the accused persons, the role assigned to the applicant is that on asking of co-accused persons, he has called the deceased to Mangal Pandey gate No. 3 but the mother of the deceased has stated that her son (deceased) has told he has received telephonic call from his friend Harsh Tyagi and deceased has left home by saying that he is going to meet Hash Tyagi. Statement of PW-1 Smt. Rajani Chaudhary, recorded before the trial court, was also referred and it was submitted by learned counsel for the applicant that she has reiterated same version as stated in her statement under Section 161 Cr.P.C. As per the statements of accused persons, the co-accused Akki @ Goldi has fired a bullet at the deceased and the pistol used in firing bullet on deceased has been recovered from the co-accused Akki @ Goldi. In view of these facts it was submitted that no motive has been shown on the part of the applicant-accused to commit murder of deceased and that no specific role was assigned to the applicant in committing murder of deceased and the sole bullet injury sustained by the deceased was caused by co-accused Akki @ Goldi and thus, on these aspects the role of the applicant-accused differs from the co-accused persons. The applicant has no criminal antecedents and there is nothing to show that in case, the applicant is released on bail, he may flee from justice or that he is in a position to temper with witnesses.

18. After going through entire record and considering above refereed discussion and all relevant considerations like nature and gravity of the accusation; severity of the punishment in the event of conviction possibility of the accused absconding, character, behaviour, means, position and standing of the accused and all other relevant attending facts and circumstances of the case, this Court is of view that a case for bail of the applicant-accused Navneet is made out.

19. Bail application is allowed. Let the applicant - accused Navneet involved in Case Crime No. 80 of 2021, under Sections 302, 201, 34 IPC, P.S. Medical College, District Meerut, be released on bail on furnishing each a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:

(i) The applicant shall not tamper with the evidence during the trial.

(ii) The applicant shall not pressurize/ intimidate the prosecution witness.

(iii) The applicant shall appear before the trial court on the date fixed, unless personal presence is exempted.

(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

(v) The applicant 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 them from disclosing such facts to the Court or to any police officer or tamper with the evidence.

In case of breach of any of the above condition, the Court concerned shall be at liberty to cancel bail of applicant in accordance with law.

20. It was informed that the applicant -accused is already on bail in pursuance of the bail order dated 10.08.2021, thus, he needs not to surrender and furnish fresh personal bond and sureties bonds. He shall remain on bail on the personal bond and surety bonds submitted by him earlier in this case in pursuant to the bail order dated 10.08.2021.

21. It is clarified that any observation made in this order shall have no bearing or effect on merits of the case during trial.

Order Date :- 26.04.2023

Suraj/Anand