Raja Mehndi @ Gola vs State Of U.P.
2023 Latest Caselaw 15621 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:108844
 
Court No. - 77
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12518 of 2023
 

 
Applicant :- Raja Mehndi @ Gola
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sanjay Kumar Yadav
 
Counsel for Opposite Party :- G.A.,Shikhar Awasthi
 

 
Hon'ble Raj Beer Singh,J.

1. Supplementary affidavit filed by learned counsel for the applicant today in the Court, is taken on record.

2. Heard Shri N.I. Jafri, learned Senior Advocate, assisted by Shri Sanjay Kumar Yadav learned counsel for the applicant, Shri Shikhar Awasthi learned counsel for the informant, learned A.G.A. for the State and perused the record.

3. The present bail application has been filed by the applicant in Case Crime No. 51 of 2022, under Sections 147, 148, 149, 452, 323, 302, 504, 506, 34 I.P.C., Police Station Sardhana, District Meerut, with the prayer to enlarge him on bail.

4. According to prosecution version, in the year 2015 some persons have committed murder of brother of informant and that case was pending before the Court. It was alleged that on 29.01.2022, applicant and other co-accused persons, in order to pressurize the informant for compromise in the said earlier case, trespassed into the house of the informant and threatened and assaulted them. Co-accused Munazir Ali, Hasan Mehandi and Ali Ahmad caught Humayun and co-accused Ajmal and Chunnu overpowered the informant and that applicant/accused Raja Mehandi @ Gola fired bullet at the deceased Humayun, resultantly, deceased sustained bullet injuries. He was taken to hospital and during treatment, he was succumbed to death.

5. It has been argued by the learned senior counsel for the applicant that applicant is innocent and he has been falsely implicated in this case. In the inquest report, it was mentioned that information regarding incident was received on 29.01.2022 at 03:05 A.M. and inquest proceedings were started at 4:00 A.M. and it was also mentioned that information regarding death of deceased was received from hospital, whereas, the first information report was registered on 29.01.2022 at 00:30 hours. Referring to these facts, it was submitted that first information report is ante-time. Learned Senior Advocate referred statement of one Shami, who has inter alia stated that on the night of 28.01.2022 at 10:00 P.M., after hearing sound of firing, he came out and saw that the dead body of deceased was lying outside the home of informant and that the mother of deceased was weeping and saying that why he has done so and she would have arranged his marriage with Rukaiya. Statements of several other witnesses, including that of Hasan Miyan, Kamber, Sameem, Mohd. Husnain and Bhoora were also referred, who have also supported the said version that the mother of deceased was saying, addressing to deceased, that why you have done so and she would have arrange his marriage with Rukaiya. Referring to all these facts, it was submitted that statements of these witnesses indicate that deceased has committed suicide by firing bullet at himself. Further, prosecution version that alleged incident took place inside the house, is wholly doubtful. In the site plan, spot of the incident has been shown outside the house of deceased. The statement of Investigating officer was also referred, who has inter alia stated that he has prepared a video of the statement of deceased but it was mistakenly got deleted by him. Learned Senior Advocate submitted that the disappearance of said video also indicates that deceased might have made statement regarding suicide but that video was deliberately deleted and later on, a false video was got prepared regarding statement of deceased. It is further submitted that the concerned doctor, who has treated the deceased, has stated that he did not record any statement of deceased. Referring to these facts, it was submitted that alleged second video, wherein, the deceased has assigned the role of firing bullet at him to the applicant, is wholly doubtful. Further, there is no certificate under Section 65-B of Evidence Act regarding the said video. Applicant has no motive to indulge in the incident. Referring to statements of witnesses and other documents, it was submitted that there is no credible evidence against applicant. Criminal history of some cases, shown against the applicant, has duly been explained. Lastly, it is submitted that applicant is languishing in jail since 16.10.2022 and that in case he is released on bail, he will not misuse the liberty of bail and co-operate in the trial.

6. Learned A.G.A. and learned counsel for the informant have opposed the bail application and argued that there is eye-witness account of the incident and that the specific role of firing bullet at deceased has been attributed to applicant. Learned counsel for the informant has referred statements of eye-witnesses and submitted that there is evidence that bullet at deceased was fired by the applicant. It is further submitted that statement of deceased was recorded by the Investigating Officer in the form of video, the description of which has been recorded in the case diary. That statement amounts to dying declaration of deceased. In that statement also, deceased has clearly stated that applicant/accused has fired bullet at him. Learned counsel for the informant further submitted that applicant is an active member of an organized gang D-77.

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

8. 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 underSection 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 ofSection 437(1)andSection 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."

9. 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].

10. 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

11. 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?.."..

12. 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?"

13. 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 underSection 439CrPC, 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 underSection 439of 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."

14. 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.

15. Coming to the facts of the present case, it is apparent that the role of firing at deceased has been attributed to the applicant. The eye-witnesses have clearly stated that applicant/accused has fired bullet at the deceased, resultantly, he sustained injuries and died. This version is further supported by the dying declaration of the deceased. There is also criminal history of several cases against the applicant.

16. Considering the submissions of learned counsel for the parties, nature of accusations, gravity of offence and all attending facts and circumstances of case, the applicant is not entitled to be enlarged on bail. Hence, the bail application of applicant Raja Mehndi @ Gola, is hereby rejected.

Order Date :- 18.5.2023

Suraj