Rajbhan Singh vs State Of U.P.
2023 Latest Caselaw 27373 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:192903
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39820 of 2023
 

 
Applicant :- Rajbhan Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sushil Kumar Dubey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Sushil Kumar Dubey, the learned counsel for applicant and the learned A.G.A. for State

2. Perused the record.

3. Instant application for bail has been filed by applicant-Rajbhan Singh seeking his enlargement on bail in Case Crime No. 27 of 2023 under Sections 147, 148, 304 I.P.C. Police Station-Pachhaygaon, District-Etawah, during the pendency of trial.

4. Record shows that in respect of an incident which is alleged to have occurred on 30.05.2023, a prompt F.I.R dated 30.05.2023 was lodged by first informant Atul Kumar and was registered as Case Crime No. 27 of 2023 under Sections 147, 148, 302 I.P.C. Police Station-Pachhaygaon, District-Etawah. In the aforesaid F.I.R. six persons namely Surajbhan Singh, Rajbhan Singh (applicant herein), Sani, Brijbhan Singh, Ashish, Nakul have been nominated as named accused whereas two unknown persons have also been arraigned as accused.

5. At the very outset, the learned counsel for applicant contends that though the applicant is a named and charged sheeted accused, yet the applicant is liable to be enlarged on bail. It is next contended that co-accused Sani has already been enlarged on bail by this Court vide order dated 23.08.2023 passed by this Court in Criminal Misc. Bail Application No. 35745 of 2023 (Sani Vs. State of U.P.). For ready reference, the order dated 23.08.2023 is reproduced hereinin-under:

". Heard Mr. Sushil Kumar Dubey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Hemant Shukla, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Sani, seeking his enlargement on bail in Case Crime No. 27 of 2023, under Sections 147, 148, 304 IPC, Police Station-Pachhaygaon, District-Etawah during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 30.05.2023, a prompt FIR dated 30.05.2023 was lodged by first informant-Atul Kumar (son of the deceased) and was registered as Case Crime No. 27 of 2023, under Sections 147, 148, 302 IPC, Police Station-Pachhaygaon, District-Etawah . In the aforesaid FIR, 6 persons namely - (1) Surajbhan Singh, (2) Rajbhan Singh, (3) Sani, (4) Brijbhan Singh, (5) Ashish and (6) Nakul have been nominated as named accused whereas 2 unknown persons have also been arraigned as accused.

5. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The inquest (Panchayatnama) of the body of deceased was conducted. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of the deceased was characterized as homicidal. Thereafter, the post mortem of the body of the deceased was conducted. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of deceased, the cause of death of deceased was opined as cardiac arrest. However, the viscera was preserved. The Autopsy Surgeon found following following ante-mortem injuries on the body of the deceased:-

"1. Abrasion size 5 x 4 cm present on right side of forehead.

2. Abrasion Size 2 x 1 cm lateral right side of chest.

3. Multiple Abrasion dorsal aspect of left hand.

4. Abrasion present on left leg 5 cm below knee joint abrasion size 2 x 1 cm."

6. On the basis of above as well as the statement of the witnesses examined under Section 161 Cr.P.C. and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of all the named accused including the applicant is established in the crime in question. He, accordingly, submitted the charge sheet dated 25.06.2023.

7. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. Subsequently, the case was converted under Section 304 IPC. Referring to the medical opinion with regard to the cause of death of the deceased, he submits that the deceased has died on account of an act of God i.e. cardiac arrest. Even otherwise, injuries sustained by the deceased are neither grievous nor fatal so as to cause the death of deceased. On the combined strength of above, it is thus contended by the learned counsel for applicant that present case shall not travel beyond Section 304 Part-2. Present case is a case of grave and sudden provocation and therefore, covered under the Vth exception to Section 300 IPC.

8. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 09.06.2023. As such, he has undergone more than 2 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, it is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

9. Per contra, the learned A.G.A. for State and the learned counsel for first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Learned A.G.A., however, submits that 3 of the charge sheeted accused have been declared juvenile and therefore, their case has been segregated and referred to the concerned Juvenile Justice Board. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that though applicant is a named as well as charge sheeted accused, injuries sustained by the deceased are neither grievous nor fatal, present case shall not travel beyond Section 304 Part-2, present case is a case of grave and sudden provocation, therefore, covered under the Vth exception to Section 300 IPC, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out from the record any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of applicant, the period of incarceration undergone, but without making any comments on the merits of the case, applicant has made out a case for bail.

11. Accordingly, the bail application is allowed.

12. Let the applicant-Sani, be released on bail in the aforesaid case crime number 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 which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

13. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 23.8.2023 "

6. On the above premise, the learned counsel for applicant contends that the case of present applicant is similar and identical to that of co-accused Sani who has already been enlarged on bail. He also contends that there is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from the aforesaid bailed out co-accused so as to deny him bail. On the above premise, the learned counsel for applicant contends that in view of above and for the facts and reasons recorded in the order dated 23.08.2023 of co-accused Sani, applicant is also liable to be enlarged on bail on the ground of parity.

7. Even otherwise applicant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. Applicant is in custody since 01.06.2023. As such, he has under-gone more than four months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial

8. Per contra, the learned A.G.A. for State has opposed the prayer for bail. He submits that since the applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage.

9. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant coupled with the fact that co-accused Sani has already been enlarged on bail by this Court, the learned A.G.A. could not distinguish the case of present applicant from that of co-accused Sarita Devi so as to deny him bail, the police report in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant stand crystallised, yet the learned AG.A. could not point out any such circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

10. Accordingly, present application for bail is allowed.

11. Let the applicant-Rajbhan Singh involved in aforesaid case crime number 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 which are being imposed in the interest of justice:-

(i) Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

12. 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 of applicant and send him to prison

Order Date :- 6.10.2023

YK