Sushil Kumar @ Munna vs State Of U.P.
2023 Latest Caselaw 14340 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:99337
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8800 of 2023
 

 
Applicant :- Sushil Kumar @ Munna
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Alok Mishra,Vikas Sharma
 
Counsel for Opposite Party :- G.A.,Syed Irfan Ali
 
And
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7759 of 2023
 

 
Applicant :- Vineet Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ajay Kumar Pathak
 
Counsel for Opposite Party :- G.A.,Syed Irfan Ali
 
Hon'ble Saurabh Shyam Shamshery,J.

1. Applicants - Sushil Kumar @ Munna and Vineet Kumar have approached this Court for bail in Case Crime No.513 of 2022, under Sections 147, 148, 149, 307, 302 I.P.C., Police Station - Kotwali Sikandrarau, District - Hathras.

2. The complainant has lodged an F.I.R. against five named accused including the applicants that on 19.09.2022 at about 6.30 AM, they in order to take possession of a certain land having country made pistols came and when it was objected by the complainant side, they started indiscriminate firing in which wife of informant's brother received fire arm injuries and she died. The other persons were present however there were lucky that they have not received any fire arm injury.

3. Learned counsel for applicants submits that though it is a case of prosecution that there was indiscriminate firing, however, only one person has received fire arm injury which was only one solitary fire arm injury. He further submits that in the F.I.R. itself the role assigned to causing fatal fire arm injury was on co-accused, Sani. He further submits that in the investigation, the witnesses who have given their statement, have not assigned any specific role of firing except that it was a case of indiscriminate firing. The applicant - Sushil Kumar @ Munna has explained criminal history of two cases in supplementary affidavit and applicant - Vineet Kumar has explained criminal history of six cases by way of rejoinder affidavit. He further submits that two co-accused, Pramod and Saurabh have already been granted bail by this Court, therefore, applicant - Sushil Kumar @ Munna who is in jail since 20.09.2022 and applicant - Vineet Kumar who is in jail since 12.10.2022 may be released on bail during trial.

4. Sri Syed Irfan Ali, learned counsel for the informant and Sri Chandan Agrawal, learned AGA-I appearing for State have opposed the bail and submit that there was prior enmity between the side of applicant and informant side. The informant side had filed an application to recall the ex parte decree just few days before the occurrence. There was recovery of a country made pistol on the pointing out of applicant- Sushil Kumar @ Munna.

5. 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)

6. In the present case, one person who has died, has received fatal injuries and the cause of death was shock and haemorrhage as a result of fire arm injury as such it appears that allegation of indiscriminate firing made in the F.I.R. as well as statement of the witnesses appears to be correct as well as specific role of causing fatal fire arm injury was on co-accused, Sani in the F.I.R. itself, therefore, also taking note that two co-accused, Saurabh and Pramod have already been granted bail by coordinate Benches of this Court, however, bail orders are not accompanied with reasons as required in terms of judgments of 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, still considering above referred factors, the applicant who is in jail since 20.09.2022 has made out a case for bail.

7. Let the applicants - Sushil Kumar @ Munna and Vineet Kumar 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicants 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 applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C., may be issued and if applicants fail to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against them, 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 applicants, if there is no other legal impediment.

(v) Applicants have to appear on each and every date before learned trial Court and any application for exemption of their appearance on vague ground could be a ground for cancellation of bail by learned trial Court immediately.

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 applicants to prison.

8. The bail application is allowed.

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

10. At this stage, learned counsel for the informant submits that in the present case, charge sheet was filed on 21.11.2022, however, still no witness has been examined as well as that the case of co-accused, Sani may be distinguished.

11. Considering the above submissions, learned trial court is directed to expedite the trial and conclude the same expeditiously, since, role of co-accused, Sani has been mentioned in the F.I.R. itself, therefore, the case of the present applicant is distinguishable from the case of the co-accused, Sani.

Order Date :- 8.5.2023

Atul