Satyendra Kumar vs State Of U.P.
2023 Latest Caselaw 7930 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Order Reserved On:-15.03.2023
 
Order Deliver On:20.03.2023
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9772 of 2023
 

 
Applicant :- Satyendra Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atul Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Siddharth,J.

Heard Sri Atul Kumar Srivastava, learned counsel for the applicant Sri Sudhakar Yadav, learned counsel for the informant; as well as the learned AGA for the State and perused the material placed on record.

The instant bail application has been filed on behalf of the applicant, Satyendra Kumar, with a prayer to release him on bail in Case Crime No. 281 of 2020 under Sections - 147, 148, 149, 302, 504 and 506 IPC, Police Station- Bithari Chainpur, District- Bareilly, during pendency of trial.

This is the second bail application. The first bail application of the applicant was rejected by this Court on 03.01.2023 for want of prosecution.

There is allegation in the FIR that the informant was going with wheat along with his brother, Bijnesh, on tractor trolley on 06.06.2020. At 9:30 hours the applicant and co-accused came on motorcycles and after crossing their tractor, they took out country-made pistols and threatened the informant and his brother stating that despite their instructions they have given evidence in Court and they started indiscriminate firing. His brother, Bijnesh, suffered gunshot injuries and fell down. Thereafter all the accused persons attacked him by axes. The informant ran away to save his life leaving the dead body of his brother on spot. He lodged FIR of the incident. It was further alleged in the FIR lodged on 29.05.2011 that murder of the brother informant, Bijnesh, was committed by co-accused, Ashok, because of giving statement in the case of murder of brother of deceased.

Learned counsel for the applicant has submitted that country-made pistols were recovered from pointing out of the co-accused, Parshuram, Santosh Pratap @ Bhanu, and they have been implicated under the Arms Act. A farsa was recovered on the pointing out of the co-accused, Jeet Singh @Jeetu. The cause of the death of the deceased was from gunshot injuries. No specific role has been assigned to the applicant. In this case, there was enmity between the family of co-accused, Ashok and the informant and there was no enmity with the applicant. The prosecution case is doubtful since deceased brother of informant, Bijnesh, died on account of suffering 14 injuries, but the informant did not suffered even a scratch. There is no public witness of recovery. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 26.06.2020. The trial in the aforesaid case is not likely to be concluded in near future. 

Learned counsel for informant and learned AGA have vehemently opposed the bail application. They have submitted that there are 14 injuries on the person of the deceased. The gunshot injuries have been caused on the neck and below neck of the deceased and other lacerated and incised wounds have also been found which show that the injuries were not caused by one person, but number of persons. The common object can be assigned to the applicant since he was part of illegal assembly of five persons.

After hearing the counsel for parties, it appears that there was prior enmity between the co-accused, Ashok, the informant and the deceased. The deceased had given statement against co-accused, Ashok in Court which was the motive for commission of the alleged crime. The applicant has not been assigned any specific motive or role in the incident. The gunshot injuries which proved fatal were fired by someone from very close range since tattoing were present over face and clavicle of the deceased. The other two gunshot injuries which were on illiac-crest and right lung were also having tattoing. The recovery of country-made pistols have been made from three co-accused, namely, Parshuram, Santosh Kumar and Bhanu Pratap. They admitted to causing gunshot injuries to the deceased. The recovery of farsa has been attributed to Jeet Singh @ Jeetu and not to the applicant.

Considering the facts that no motive of crime has not been attributed to the applicant nor any incriminating recovery has been made from him, he is directed to be enlarged on bail.

Regarding long incarceration of under trials prisoners in jail due to delay in conclusion of trial, the Hon'ble Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 has held in Para 16 of the judgment being reproduced herein below as follows :-

"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

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 the 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 trial; 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 that :-

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) The applicant 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.

(v) The applicant shall remain present in person 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 applicant 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.

In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Order Date :-20.03.2023

Abhishek