Kanhiya vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 20028 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:50607
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 2852 of 2022
 
Appellant :- Kanhiya
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
 
Counsel for Appellant :- Madhulika Yadav,Shyamendra Singh,Tej Singh
 
Counsel for Respondent :- G.A.
 
Hon'ble Shamim Ahmed,J.

1. The case is taken up in the revised call.

2. Counter affidavit filed by learned A.G.A. for the State is taken on record.

3. Learned counsel for the appellant submits that he has already filed rejoinder affidavit in reply to the counter affidavit filed on behalf of State, which is on the record.

4. As per the office report dated 17.12.202 notice issued to the opposite party No. 2 has already been served, but till date neither any counsel has appeared nor any counter affidavit has been filed on his behalf. It appears that opposite party No. 2 is not interested to contest the case.

5. The present matter pertains to bail, therefore, this Court has no option but to hear the present appeal finally.

6. Heard Shri Shyamendra Singh, the learned counsel for the appellant, Shri Bhaskar Mal, the learned A.G.A. for the State-opposite party No. 1 and perused the record.

7. The present criminal appeal under Section 14-A(2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant, Kanhiya, against the impugned order dated 01.11.2022 passed by the court of learned Special Judge, SC/ST Act, Sitapur in Bail Application No. 431 of 2022, arising out of Case Crime No. 230 of 2022, under Sections 147, 304 I.P.C. read with Section 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Atariya, District Sitapur, whereby bail application of appellant has been rejected.

8. Learned counsel for the appellant submits that appellant is innocent and has been falsely implicated in the present case due to enmity and village partybandi. No such incident took place as alleged by the prosecution.

9. Learned counsel for the appellant further submits that there were some disputes of Pradhani election of the village and for that reason the appellant has been implicated in the case.

10. Learned counsel for the appellant further submits that as per the version of F.I.R. which was lodged by the son of the deceased seven persons including the appellant were named and general allegation of Marpeet has been assigned to all the accused persons therein, but there is no any specific allegation against any of the accused, even none of the accused has been assigned any specific weapon holding in their hands and a general role of assaulting has been assigned to all the accused including the present appellant.

11. Learned counsel for the appellant further submits that the person who died is the father of complainant. Thereafter, postmortem of the deceased was conducted wherein no any ante mortem injury was found on his person and his cause of death could not be ascertained, hence viscera was preserved and till date no viscera report is available, which has been confirmed by the learned A.G.A. Thus, it has been argued that the case as set up in the F.I.R. is totally false and fabricated and the appellant along with other accused persons has been implicated falsely, therefore, the prayer for bail of the present appeal may be allowed by this Court sympathetically and the impugned bail rejection order passed by the trial court may be set aside.

12. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused has no previous criminal history and is in jail since 21.08.2022 and that in the wake of heavy pendency of cases in the court, there is no likelihood of any early conclusion of trial.

13. Learned A.G.A. for the State has not disputed that there is no any ante mortem injury found in the postmortem of the deceased, but he submits that present appeal may be dismissed.

14. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, nature of evidence, period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that general allegation of Marpeet has been assigned to all the accused persons therein, there is no any specific allegation against any of the accused, even none of the accused has been assigned any specific weapon holding in their hands and a general role of assaulting has been assigned to all the accused including the present appellant; there appears force in the arguments of learned counsel for the appellant that there is no any ante mortem injury found on the person of the deceased and his cause of death could not be ascertained, hence viscera was preserved and till date no viscera report is available, which has been confirmed by the learned A.G.A., thus, the case as set up in the F.I.R. is totally false and fabricated and the appellant along with other accused persons has been implicated falsely and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned trial court has failed to appreciate the material available on record. Thus, the impugned bail rejection order passed by the trial court is liable to be set aside.

15. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 01.11.2022 passed by the court of learned Special Judge, SC/ST Act, Sitapur in Bail Application No. 431 of 2022, arising out of Case Crime No. 230 of 2022, under Sections 147, 304 I.P.C. read with Section 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Atariya, District Sitapur, is hereby set aside and reversed.

16. Let the appellant, Kanhiya, be enlarged on bail in Case Crime No. 230 of 2022, under Sections 147, 304 I.P.C. read with Section 3(2)5 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Atariya, District Sitapur, 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.

17. The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

18. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

Order Date :- 1.8.2023

Mustaqeem