Sanjay vs State Of U.P.
2024 Latest Caselaw 9742 ALL

Allahabad High Court

Sanjay vs State Of U.P. on 1 April, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:54853
 
Court No. - 77
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53784 of 2023
 

 
Applicant :- Sanjay
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sonu Malik
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mrs. Sonu Malik, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the Court.

3. This repeat application for bail has been filed by applicant-Sanjay, seeking his enlargement on bail in Case Crime No. 904 of 2022 under Sections302, 201, 34 I.P.C., Police Station-Kotwali City, District- Bijnor, during the pendency of trial i.e. Sessions Trial No. 524 of 2023 (State Vs. Tilak and others) now pending in the court of Additional District and Sessions Judge, Court-3, Bijnor.

4. First bail application of applicant was rejected by this Court by a detailed order dated 31.07.2023 passed in Criminal Misc. Bail Application No. 28900 of 2023 (Sanjay Vs. State of U.P.) alogwith other connected bail applications. For ready reference, the order dated 31.07.2023 is reproduced herein under:

"1. Heard Mr. Pankaj Kumar Tyagi, Advocate, holding brief of Mr. Satyam Singh, the learned counsel for applicant-Sanjay, Mr. Shiv Nath Singh, the learned Senior Advocate, assisted by Mr. Girish Kumar Verma, the learned counsel for applicant-Sonu, Mr. Amit Kumar, the learned counsel for applicant-Sriram, the learned A.G.A. for State and Miss Mayuri Mehrotra, the learned counsel representing first informant.

2. Perused the record.

3. These applications for bail have been filed by applicants-Sanjay, Sonu and Sriram seeking their enlargement on bail in Case Crime No. 904 of 2022, under Sections 302, 201, 34 IPC, Police Station-Kotwali, District-Bijnor during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred in between 09.12.2022 to 10.12.2022, a delayed FIR dated 11.12.2022 was lodged by first informant-Smt. Rekha (Mother of the deceased) and was registered as Case Crime No. 904 of 2022, under Sections 302, 201, 34 IPC, Police Station-Kotwali, District-Bijnor. In the aforesaid FIR, 4 persons namely- (1) Tilak Singh, (2) Sonu, (3) Sanjay and (4) Shriram have been nominated as named accused.

5. The gravamen of the allegations made in the FIR to the effect that three of the named accused namely- Tilak Singh, Sonu and Sanjay with a common intention came to the house of the first informant and thereafter informed the first informant that his son is being taken for some clarification. They took away the son of the first informant along with them. However, the son of the first informant did not return even till morning. Accordingly, a search was made regarding his whereabouts and the dead body of the deceased i.e. son of the first informant was found lying in the Jungle on 10.12.2022 at around 5:00 P.M.

6. 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 (Panchyatnama) of the deceased was conducted on 11.12.2022. 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 on the same day. The Doctor, who conducted the autopsy of the body of the deceased found following anti-mortem injuries on the body of the deceased;-

"(1) Neck circumference = 31 cm.

(2) Ligature mark horizontal 29 cm. x 2.4 cm. below thyroid cartilage and below the Rt. ear 6 cm. below Lt. ear 05 cm.

(3) On cut section under the neck ligature mark extravasations clot blood +nt.

(4) 2 cm. absent ligature mark back of neck.

(5) Blackish +nt at Lt. side chest with midline chest 10 x 9 cm, 1 cm. below from Lt. nipple.

(6) Abrasion 1 x 0.5 cm. present on base of Lt. index finger.

(7) Abrasion 1 x 1 cm. present on Rt. joint. elbow

(8) Abrasion 2 x 1 cm. present on Lt. great toe.

(9) Singeing of hair at Lt. side and mid line of chest."

7. In the opinion of Autopsy Surgeon, the cause of death of the deceased was Asphyxia as a result of ante-mortem strangulation. During course of investigation, Investigating Officer examined the first informant and the other witnesses under Section 161 Cr.P.C.

8. On the basis of above and other material collected by Investigating Officer, during the course of investigation, he came to the conclusion that offence complained of is fully established against named accused. He, accordingly, submitted the charge sheet dated 14.01.2023 whereby named accused have been charge sheeted under Section 302, 201 and 34 IPC.

9. Mr. Pankaj Kumar Tyagi, the learned counsel for applicants Sanjay and Sonu contends that though applicants are a named as well as charge sheeted accused yet they are liable to be enlarged on bail. He submits that only evidence that has emerged against applicant is to the effect that the deceased lastly went in the company of the present applicant. He has then invited the attention of the Court to the post mortem report and the opinion of the Doctor which is on record at page 36 of the paper book. On the basis of above, he submits that in the opinion of the Autopsy Surgeon, the death of the deceased occurred about more than 1 and 1/2 day before. On the above premise, he submits that the death of the deceased had occurred much before the time when the deceased is alleged to have gone in the company of above applicants.

10. Even otherwise, applicants are men of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. Applicants are in jail since 12.12.2022. As such, they have undergone more than 7 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet 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 circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is lastly contended that there is no recovery from the applicant either. Present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence. The complicity of the applicants in the crime in question has to be judged in the light of the parameters laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622 (Page 152). However, none of the parameters laid down by the Supreme Court in above noted judgment are satisfied against the applicant up to this stage. He, therefore, contends that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

11. Mr. Shiv Nath Singh, the learned Senior Counsel assisted by Mr. Girish Kumar Verma, the learned counsel for applicant-Sonu has also adopted the arguments raised by Mr. Pankaj Kumar Tyagi.

12. According to the learned Senior Counsel for applicants as per the prosecution story as unfolded in the FIR, no direct role is assigned to co-accused Sriram in the commission of crime. The only allegation that has emerged against applicant-Sriram is that of a conspirator. He submits that conspiracy is a closed door affair and therefore, subject to trial evidence. It is thus contended that the case of applicant Sriram is clearly distinguishable from other 3 co-accused.

13. Per contra, the learned A.G.A. for State and Miss Mayuri Mehrotra, the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that that the prosecution story as unfolded in the FIR is clear and categorical. The deceased went in the company of the 3 of the named accused namely (1) Tilak Singh, (2) Sonu and (3) Sanjay. The prosecution story so unfolded in the FIR also stands corroborated by the statement of the first informant recorded under Section 161 Cr.P.C. As per the post mortem report, the death of the deceased is homicidal death. No explanation has come forword from the named accused Tilak Singh, Sonu and Sanjay with regard to the allegations made in the FIR that the deceased went in the company of aforementioned 3 named accused. On the above premise, they submit that the complicity of the 3 of the named accused namely Tilak Singh, Sonu and Sanjay is fully established in the crime in question. However, they could not dislodge the factual/legal submissions urged by the learned Senior Counsel for applicant-Sonu that the role of the named accused Sriram is clearly distinguishable from 3 other named accused i.e. Tilak Singh, Sonu and Sanjay.

14. Having heard, the learned counsel/the learned Senior Counsel for applicants, the learned A.G.A. for State, Miss Mayuri Mehrotra, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of applicants coupled with the fact that the complicity of named accused Sonu, Sanjay and Sriram as per the prosecution story as unfolded in the FIR, the deceased lastly went in the company of 3 of the named accused namely - Sonu, Sanjay and Sriram, no explanation has come offered from the applicants Sunu and Sanjay with regard to the whereabouts of the deceased, after the deceased had accompanied 3 of the named accused mentioned above, the post mortem report of the deceased clearly denotes that the death of the deceased is homicidal death, the role of the applicant co-accused Sriram is that of conspirator, conspiracy is a closed door affair and therefor, subject to trial evidence, his role is clearly distinguishable from other these accused, the clean antecedents of applicant Sriram but without making any comments on the merits of the case, the applicant-Sriram has made out a case for bail

15. Accordingly, the bail application of co-accused Sriram is allowed whereas the bail applications of co-accused Sonu and Sanjay fail and are liable to be rejected.

16. They are, accordingly, rejected.

17. It is further clarified that no parity shall be claimed by the other named/charge sheeted accused namely Tilak Singh from the bail order of the co-accused Sriram.

18. Let the applicant-Sriram, 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.

19. However, it is made clear that any wilful violation of above conditions by the applicant-Sriram, 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 :- 31.7.2023 "

5. Learned counsel for applicant contends that charge-sheet was submitted against applicant on 24.01.2023. Thereafter, charges were framed against applicant by court concerned vide framing of charge order dated 13.06.2023. However, in spite of the fact that a period of nine and a half months has rolled by, not a single prosecution witness has yet appeared before court below. She therefore submits that there is delay in progress of trial. Since applicant is in jail, as such, it cannot be said that delay in the progress of trial is on account of applicant himself. On the above premise, she submits that applicant is liable to be enlarged on bail. To buttress her submission, she has relied upon the judgement of Apex Court in A.R. Antulay Vs. R. S. Nayak (1992) 1 SCC 225. With reference to above she submits that right of speedy trial is now recognized as a fundamental right of the accused. As such, the incarceration of applicant cannot be permitted to continue on account of lackadaisical approach of the prosecution in pursuing the trial. On the above premise, she therefore contends that applicant is liable to be enlarged on bail.

6. 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 custody since 12.12.2022. As such, he has undergone more than one year and three and a half month of incarceration. Police report (charge-sheet) 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 stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. She has also relied upon the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5). On the above premise, she 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.

7. Per contra, the learned A.G.A. for State have opposed the prayer for bail. He submits that since applicant is a named as well as the charge-sheeted accused therefore he does not deserve any indulgence by this Court. Applicant is guilty of causing the murder of one Indrajeet @ Kaka. As such, no sympathy be shown by this court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

8. Having heard the learned counsel for applicant, the learned A.G.A. for State, 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 charge sheet has been submitted against applicant on 24.01.2023, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised, irrespective of above, the learned A.G.A. court not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, there is delay in the progress of trial, by virtue of law laid down by Apex Court in A.R. Antulay (supra) right to speedy trial is a fundamental right of an accused, since the applicant is in jail therefore it cannot be said the applicant is responsible for the delay in the progress of trial, since an accused has the right to speedy trial and the said right of the accused/applicant stands infringed on account of lackadaisical approach of the prosecution, judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), charges were framed by court below vide framing of charge order dated 13.06.2023, however in spite of the the fact that that a period of nine and a half months has rolled by not a single prosecution witness has appeared before court below, since the applicant is in jail therefore it cannot be said the applicant is responsible for the delay in progress of trial, clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

9. Accordingly, present repeat application for bail is allowed.

10. Let the applicant-Sanjay 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.

11. 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 :- 1.4.2024/YK