Duberam vs State Of U.P.
2023 Latest Caselaw 15631 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:109107
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29269 of 2022
 

 
Applicant :- Duberam
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Deepak Rana
 
Counsel for Opposite Party :- G.A.,Anand Kumar
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Applicant- Duberam has approached this Court for bail in Case Crime No. 119 of 2022 under Sections 147, 148, 149, 302 I.P.C., Police Station- Simbhawali, District- Hapur.

In the present case, informant (father of deceased) lodged a prompt F.I.R. against five named accused including applicant for offence under Sections 147, 148, 149, 302 I.P.C. that all named accused persons have caused death of his son and before death his son has intimated that all of them have intercepted him and one of named accused Kapil Gurjar shot firearm. According to post mortem report, immediate cause of death was shock and haemorrhage as a result of ante mortem firearm injuries (there are five firearm entry wound).

Sri Deepak Rana, learned counsel for applicant submits that specific role is assigned only to co-accused Kapil Gurjar whereas allegations against applicant and three other co-accused are only that they were present at the time of occurrence; he further submits that similarly situated co-accused Aman and Khadka Singh have already been granted bail by coordinate Benches of this Court; therefore, applicant, who is in jail since 31.03.2022 may be released on bail during trial.

While opposing bail, Sri Sunil Srivastava, learned AGA appearing for State submits that since all persons were part of unlawful assembly and one of its member has caused death, therefore, according to Section 149 I.P.C., all accused persons will be equally liable.

Sri Anand Kumar, learned counsel for informant submits that during trial, testimony of PW-1 is still going on and he has stated in his examination in chief that all accused persons have fired on deceased, therefore, at this stage, the applicant is also assigned specific role of firing.

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)

In the present case, from the facts referred above, it transpires that according to F.I.R. and statement of witnesses recorded during investigation, role of firing was assigned only against one Kapil Gurjar whereas role assigned to applicant and other three co-accused were that they were present at the time of occurrence and were part of unlawful assembly. Co-accused Aman and Khadka Singh have been granted bail by coordinate Benches of this Court, however, reasons given therein are not 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.

At this stage, the Court may not go into statement recorded during trial since it will be a subject matter of Trial Court to consider as well as it is still not concluded, therefore, considering that during investigation, specific role is assigned to one of the co-accused Kapil Gurjar and similarly situated co-accused have already been granted bail as well as considering nature of evidence in regard to formation of unlawful assembly, therefore, applicant has made out a case for bail.

Let the applicant- Duberam 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant 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 applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant 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 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 applicant, if there is no other legal impediment.

(v) Applicant has to appear on each and every date before learned trial Court and any application for exemption of his 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 applicant to prison.

The bail application is allowed.

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

Order Date :- 18.5.2023

Nirmal Sinha