Allahabad High Court
Chandan vs State Of U.P. on 7 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:82166
Court No. - 77
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56106 of 2022
Applicant :- Chandan
Opposite Party :- State of U.P.
Counsel for Applicant :- Ashok Kumar Maurya
Counsel for Opposite Party :- G.A.,Kirtikar Pande
Hon'ble Rajeev Misra,J.
1. Heard Mr. Ashok Kumar Maurya, the learned counsel for applicant, the learned A.G.A. for State and Mr. Kirtikar Pande, the learned counsel representing first informant.
2. Perused the record.
3. This repeat application for bail has been filed by applicant-Chandan, seeking his enlargement on bail in Case Crime No. 0091 of 2021, under Sections 147, 148, 149, 323, 504, 308, 325, 304 I.P.C., Police Station- Khejuri, District- Ballia, during the pendency of trial i.e. Session Trial No. 736 of 2021 (State Vs. Vinod and others) now pending in the Court of District and Sessions Judge, Ballia.
4. The first bail application of applicant was rejected by this Court by a detailed order dated 25.04.2022 passed in Criminal Misc. Bail Application No. 48451 of 2021 (Rajkumar and other alongwith four connected bail applications). For ready reference, the same is reproduced hereinunder:-
"Heard Mr. Arvind Singh Sengar, learned counsel for applicants Rajkumar, Vidyawati, Mr. M.P. Yadav along with Mr. Ashwani Kumar Rai, learned counsel for applicants Sunil and Ajit, Mr. S.M.A. Abdy, learned counsel for applicant Vinod, Mr. Devottam Pandey, learned counsel for applicant Chandan, learned A.G.A. for State and Mr. Kirtikar Pande, learned counsel for first informant.
These applications for bail have been filed by applicants Rajkumar, Vidyawati, Sunil, Ajit, Vinod and Chandan seeking their enlargement on bail in Case Crime No. 0091 of 2021, under Sections 147, 148, 149, 323, 504, 308, 304, 325 IPC, P.S. Khejuri, District Ballia, during pendency of trial.
Perused the record.
Record shows that in respect of an incident, which is alleged to have occurred on 21.6.2021, a delayed F.I.R. dated 22.6.2021 was lodged by first informant Nirbhay Narayan and was registered as Case Crime No. 0091 of 2021, under Sections 147, 148, 149, 323, 504, 452, 308, 325 IPC, P.S. Khejuri, District Ballia,. In the aforesaid F.I.R., nine persons namely Vinod, Chhiteshwar, Raj Kumar, Chandan, Pintoo, Sunil, Ajit, Meera and Vidyawati have been nominated as named accused.
Gravamen of the allegations made in the F.I.R. is that named accused, who were armed with lathi, danda and axe with a common object assaulted Hriday Narayan, elder brother of first informant, on account of which he sustained head injury. The F.I.R. further states that Pankaj sustained fracture and injuries on his head, Haushala sustained injury on his nose and one tooth was broken, Anup also sustained injuries, whereas Rakesh sustained the axe injury. Apart from above, Abhay Narayan and Anita also sustained injuries. Hriday Narayan was taken to Ballia from where he was referred to Mau. His condition is critical and has been admitted in I.C.U.
After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C.
The injured Nirbhay Narayan was medically examined on 21.6.2021 and he sustained following injuries:-
(1) Lecerated wound 2.50 x 0.5 x 0.5 cm over forehead 5 cm from glebella Adv. X-ray Skull Lat/A.P.
(2) Lacerated wound 10 x 0.1 cm over lt. nasal septum
(3) Lacerated wound 1 x 0.1 cm over nasal bridge.
Injured Anup was medically examined on 21.6.2021 and he sustained following injuries:-
1. Abrasion wound 7 cm x 2.0 cm over Rt. scapular region
2. Abrasion wound 7.00 cm x 2.0 cm over Rt. Scapular region
3. Contused swelling 1x1 cm over parietal region.
Injured Haushila was examined on 21.6.2021 and he sustained following injuries:-
1. 1.0 x 1.0 cm lacerated wound and swelling 1.5 x 1.5 over nasal bone (dorsum)
Adv. X-ray (PNS) Nasal bone Lat/A.P.
Injured Hriday Narayan was examined on 21.6.2021 and he sustained following injuries:-
1. 10 stitch over wound (stitch wound) on parietal region Adv. X-ray Skull A.P./Lat.
2. Abrasion 6.0 cm over Rt. Hypogastric region.
3. Abrasion 3 cm over Rt. leg 10 cm for Rt. Knee joint
Injured Anoj Bharati @ Pankaj Kumar was medically examined on 21.6.2021 and he sustained following injuries:-
1. Stitched wound (3 stitch) over Rt. frontal region
2. Contused swelling 4.0 x 4.0 cm on over left wrist joint Adv X-ray left wrist A.P./Lat.
3. Contused swelling 2 x 2 cm wrist parietal region 5 cm from left ear.
As per the medico legal accidental X ray report injured Anoj Bharati sustained fracture on his wrist. As per medico legal report dated 22.6.2021 he sustained following injuries:-
"Referred by EMO Dhani Shankar D.H. Ballia
Brought by and identified by C.P. No. Name self OPD/Indoor No. 15330
Parts X-Rayed X Lt. wrist A.P./Lat.
Finding fracture of both radius and ulna bone."
Injured Rudali Devi was examined on 22.6.201. Injured Abhay Narayan was examined on 22.6.2021. Injured Ankit alias Abhay was examined on 26.6.2021, who sustained following injuries:-
Injuries of Rudali
1. COP (Lt.) shoulder
2. Reddish contusion 5 x 2 cm (Rt.) thigh
3. COP Head
4. COP lower back
Injuries of Abhay Narayan
1. COP with Reddish contusion 5 x 2 cm (Rt.) thigh linear regular tenderness (+)
2. Stitched wound 3 cm Chin linear tenderness (+)
3. Weapon/Object used Hard/& Blunt object.
Injuries of Anita Devi
1. COP with swelling 4 x 2 cm (Rt.) forehead oval round
2. COP (Rt.) shoulder
3. COP Cervical.
During course of investigation, Hriday Narayan, whose condition was critical, ultimately, succumbed to the injuries sustained by him on 25.6.2021. Thereafter, the inquest of the body of the deceased Hariday Narayan was conducted on 25.6.2021. In the opinion of 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 25.6.2021 itself. In the opinion of Autopsy Surgeon, the cause of death of the deceased was coma as a result of head injury. Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-
(1) Surgical stapled stitched wound on right side of head in front parietal and temporal area, 2 cm above right eyebrow, 5 cm out midline and 3 cm above right ear 35 cm long with 59 metallic angle
(2) One drain present on right side of head 1 cm right to midline and 12 cm above root of nose
(3) Contusion on left side lower abdomen 12 cm x 3 cm touching to eliac joint and 4 cm from umbilicus
(4) Contusion on back of right leg 5 cm x 3 cm x 7 cm below knee joint.
In view of above, Investigating Officer added Section 304 IPC.
During course of investigation, Investigating Officer examined first informant and the following witnesses in the following chronology:-
Nirbhay Narayan
Anita Devi
Abhay Narayan Singh
Rudali Devi
The second statement of the first informant was recorded on 16.7.2021. The first informant in his second statement has nominated Chandan as the author of the fatal head injury sustained by deceased. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. He, accordingly, submitted the charge sheet dated 29.8.2021, whereby all the nine named accused have been charge sheeted under Sections 147, 148, 149, 323, 504, 308, 325, 304 IPC.
At the very outset, learned counsel for applicants contend that named and charge sheeted accused Chhiteswar and Pintoo have been enlarged on bail by this Court, vide order dated 3.3.2022 passed in Criminal Misc. 48647 of 2021 (Chhiteswar and another Vs. State of U.P.). Same reads as under:-
"Heard learned counsel for the applicants, learned AGA for the State and perused the record.
The instant bail application has been filed on behalf of the applicants with a prayer to release them on bail in Case Crime No. 91 of 2021, under Sections 147, 148, 149, 323, 504, 308, 304, 325 IPC, Police Station Khejuri, District Ballia, during pendency of trial.
Submission of learned counsel for the applicants is that the applicants have been falsely implicated in the present case with ulterior motive. They did not commit any offence as alleged and have no concern whatsoever with it. It is further submitted that it is a cross case and there are general allegations. The applicant no. 1 is 55 years old and the applicant no. 2 is 24 years old. Learned counsel for the applicants further submits that no specific role is assigned to the applicants. All witnesses in first information report stated that during marpeet all accused used an axe, however, no injury of axe was found. Several other submissions in order to demonstrate the falsity of the allegations made against the applicants have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicants that they are ready to cooperate with the process of law and shall faithfully make themselves available before the court whenever required. The applicants are languishing in jail since 30.6.2021. They undertake that they will not misuse the liberty, if granted, therefore, they may be released on bail.
Learned counsel appearing for the opposite party vehemently opposed the prayer.
Having heard the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, (2018) 3 SCC 22, without expressing any view on the merits of the case, I find it to be a case of bail.
Considering the facts and circumstances of the case, I find it to be a fit case for bail. Let the applicants ? (1) Chhiteswar and (2) Pintu involved in the aforementioned crime be released on bail, on their furnishing a personal bond and two sureties of Rs. One Lakh each, with the following conditions:-
(1) The applicants shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;
(2) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. They shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code;
(3) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and
(4) 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. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against them, in accordance with law under Section 174-A of the Indian Penal Code.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicants to prison.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case."
It is then contended that named and charge sheeted accused Smt. Meera Devi has also been enlarged on bail by this Court, vide order dated 16.3.2022 passed in Criminal Misc. Bail Application No. 45557 of 2021 (Smt. Meera Devi Vs. State of U.P.). For ready reference, same is reproduced herein under:-
"Heard Sri M.P. Yadav, learned counsel for the applicant, Sri Kirtikar Pande, learned counsel for the first informant, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of applicant Smt. Meera Devi under Section 439 of the Code of Criminal Procedure, with a prayer to release her on bail in Case Crime No. 91 of 2021 for offence punishable under Sections 147, 148, 149, 323, 504, 308, 304, 325 of the Indian Penal Code registered at Police Station Khejuri, District Ballia during the pendency of the trial after rejecting the bail application of the applicant by the Special Judge (E.C. Act)/ Additional Sessions Judge, Ballia, vide order dated 13.9.2021.
Brief facts of the case are that the first information report dated 22.6.2021 has been lodged against the applicant and other 8 named accused persons stating that a dispute of partition of land was pending between the first informant and accused persons and the Sub-Divisional Magistrate vide order dated 11.6.2021 granted status-quo with regard to property in dispute. On 21.6.2021, Hridaya Narayan elder brother of the first informant had gone to throw cow dung over Abadi land and while he was returning back, on the way named accused persons started beating him with lathi, danda and Axe. Due to which, he fell down and became unconscious. Upon coming to know, other family members rushed to the incident place to save the injured but the named accused persons committed marpeet with the other family members of the first informant also in which Pankaj, Hausala, Anup, Rakesh, Abay Narayan and Anita have sustained injuries. Hridaya Narayan was admitted to the hospital in ICU ward.
After lodging of the first information report, medical examination of the injured persons have been conducted on 21.6.2021 and 22.6.2021. After death of injured Hridaya Narayan, inquest has been conducted on 25.6.2021 at 12:30 P.M and post-mortem of the body of the deceased has also been conducted on 25.6.2021 at 3:00 P.M. After recording the statements of the injured persons except deceased and other witnesses under Section 161 Cr.P.C., charge-sheet has been submitted on 29.8.2021. The applicant was arrested on 2.8.2021.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that another first information report of cross case has been lodged by the applicant side against the first informant and his family members on 22.6.2021 under Section 147, 149, 323, 552, 504, 506, 308 and 395 I.P.C and on the side of the applicant Vinod Kumar, Chiteshwar, Raj Kumar and Vidhyavati sustained injuries i.e. lacerated wound, contusion swelling over the paratile region, fore-head and on the right scapula etc. It is further submitted that the FIR of the present case, has been lodged on the basis of false and frivolous allegations and the applicant has been roped in the present case. Only general role of committing marpeet has been assigned to the applicant. No specific role or involvement has been attributed to the present applicant. It is further submitted that prosecution has not explained the injuries of the injured Vinod Kumar, Chiteshwar, Raj Kumar and Vidhyavati. It is further submitted that co-accused Chiteshwar and Pintu having similar role, have been granted bail by the Co-ordinate Bench of this Court in C.M. Bail Application No. 48647 of 2021 vide order dated 3.3.2022. He next submits that the applicant is languishing in jail since 2.8.2021 having no criminal history. It is lastly submitted that if the applicant is released on bail, he shall not misuse the liberty of bail.
Per contra, learned AGA as well as learned counsel for first informant have supported the order passed by the Sessions Court and vehemently opposed the prayer for grant of bail to the applicant and they further submits that the allegations involved are very serious in nature. But, they could not point out any material to the contrary. They further submits that in case the applicant is released on bail, he will misuse the liberty of bail.
After considering the facts of the present case it prima facie appears that;
(a) First information report of cross case has been lodged against first informant and his family members under Section 147, 149, 323, 552, 504, 506, 308 and 395 I.P.C. and four persons sustained injuries on their person.
(b) General allegation of marpeet has been assigned to the applicant; no specific role/involvement has been attributed to the present applicant;
(c) The applicant is languishing in jail since 2.8.2021;
(d) Co-accused Chiteshwar and Pintu having similar role have been granted bail by the Co-ordinate Bench of this Court.
It is settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, her role and involvement in the offence, her involvement in other cases and reasonable apprehension of the witnesses being tampered with.
Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Smt. Meera Devi be released on bail in the aforesaid case crime number on her furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient case, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.
The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance of law after the release of the applicant, if there is no other legal impediment.
It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."
On the aforesaid premise, it is commonly urged by learned counsel for applicants that case of the present applicants is similar and identical to aforementioned named and charge sheeted accused, who have already been enlarged on bail. There is no such distinguishing feature, on the basis of which, case of present applicants can be distinguished from aforementioned named/charge sheeted accused, who have already been enlarged on bail so as to deny them bail. It is thus urged that for the facts and reasons recorded in the bail orders of above mentioned named/charge sheeted accused, applicants are also liable to be enlarged on bail on the ground of parity.
Learned counsel for applicants except the applicant Chandan jointly submit that first informant has nominated named accused Chandan as the author of the fatal head injury sustained by the deceased Hriday Narayan. It is thus sought to be contended that case of the other applicants is distinguishable from named/charge sheeted accused Chandan.
It is further submitted that apart from the deceased, various other persons have sustained injuries as is explicit from their medico legal reports quoted herein above. However, none of the injured has sustained grievous/fatal injury.
It is also contended that occurrence has taken place at the spur of moment. There is no calculated mens rea on the part of the applicant to commit the crime in question. It is for this reason that applicants have been charge sheeted under Section 304 IPC.
It is also further urged that all the applicants have clean antecedents, inasmuch as they have no criminal history to their credit, except the present one. Applicants Raj Kumar, Sunil, Ajit and Chandan are in jail since 04.07.2021, applicant Vidyawati is in jail since 23.8.2021 and applicant Vinod is in jail since 5.7.2021. As such they have undergone sufficient period of incarceration. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
Mr. Devottam Pandey, learned counsel for applicant Chandan has substantially adopted the aforesaid arguments. He, however, submits that the factum that applicant is the author of the fatal head injury sustained by the deceased is not mentioned in the F.I.R. The applicant (Chandan) was arrested on 17.7.2021 and his confessional statement was thereafter recorded. However, after aforesaid exercise was undertaken that the Investigating Officer recorded the second statement of first informant, in which applicant has been nominated as the author of the fatal head injury sustained by deceased. He, therefore, contends that though F.I.R. is not encyclopedia of the prosecution case, but it must disclose the basic prosecution case. As the factum as noted above is absent in the F.I.R., the applicant has wrongly been nominated as the author of fatal head injury sustained by deceased. On the aforesaid premise, he submits that applicant Chandan is also liable to be enlarged on bail.
Per contra, the learned A.G.A. and Mr. Kirtikar Pande, learned counsel for first informant have opposed these applications for bail. They jointly submit that applicants are not only named accused, but also charge sheeted accused. Therefore,they do not deserve any indulgence by this Court. Referring to the medico legal reports of the injured as well as post mortem report of the deceased, it is sought to be contended that criminality committed by named accused including present applicants is interlinked and intertwined. As such, it cannot be separated or segregated. On account of the criminality committed by the named accused including the present applicants, one person namely Hriday Narayan has died, whereas six persons have sustained injuries i.e. injured. They, therefore, contend that applicants do not deserve any indulgence by this Court.
Rebutting the submissions urged by Mr. Devottam Pandey, learned counsel for applicant Chandan it is jointly urged by learned A.G.A. as well as Mr. Kirtikar Pande, learned counsel for first informant that named accused Chandan was arrested on 17.7.2021 and thereafter his confessional statement was recorded. However, the second statement of the first informant had already been recorded on 16.7.2021 i.e. before the arrest of Chandan and the recording of his confessional statement. It is thus urged that arguments raised by Mr. Devottam Pandey, learned counsel for applicant Chandan are wholly misconceived and therefore not tenable in fact.
In rejoinder, Mr. Devottam Pandey, learned counsel for applicant Chandan has rejoined the submission earlier urged on behalf of applicant. He further submits that there are cross versions of the same occurrence. F.I.R. has also been lodged on behalf of applicant, which has been registered as Case Crime No. 92 of 2021, under Sections 147, 149, 323, 552, 504, 506, 308 and 395 IPC. In the aforesaid F.I.R., 13 persons have been nominated as named accused including the deceased. It is sought to be contended that the only issue that is required to be adjudicated is as to who is the aggressor. The said issue can be decided only at the time of trial. General allegations have been levelled against all the accused including Chandan. As such, applicant Chandan is also liable to be released on bail.
Having heard learned counsel for applicants, learned A.G.A. for the state, Mr. Kirtikar Pande, learned counsel for first informant, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, but without expressing any opinion on merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant Chandan on bail. Accordingly, bail application of applicant Chandan is rejected.
However, for the facts and reasons noted above, the bail applications of other co-accused are liable to be allowed. Accordingly, their bail applications are allowed.
Let the applicants Raj Kumar, Sunil, Ajit, Vidyawati and Vinod involved in aforesaid case crime number, be released on bail on their furnishing a personal bond with 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 shall file an undertaking to the effect that they will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicants shall not seek any adjournment on the dates 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants 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 them in accordance with law."
5. Learned counsel for applicant contends that applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. The first bail application of applicant was rejected primarily on the ground that applicant is the author of the fatal head injury sustained by Hriday Narayan since deceased. He, however, contends that in respect of the same occurrence cross F.I.R's. have been lodged. Since trial of applicant and other co-accused in aforementioned sessions trial has already concluded, therefore, the trial evidence in respect of one of the parties stands recorded. The trial of the connected sessions trial i.e. Sessions Trial No.869 of 2023 (State Vs. Abhay Narayan and others) is also in progress and two prosecution witnesses have been examined upto this stage. He therefore, contends that the primary question to be considered by Court below is as to who is the aggressor. The said question can be answered only after the entire evidence has been recorded before trial Court in both the sessions trial referred to above. Applicant is in jail since 17.07.2021. As such he has undergone more than 2 years, 9 months and 15 days of incarceration. Referring to the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), he therefore, submits that since charge sheet has already been submitted against applicant but no such circumstance has emerged on the record necessitating the custodial arrest of applicant even during the pendency of trial.
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 jail since 17.07.2021. As such, he has undergone more than 2 years, 9 months and 15 days 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. On the above premise, he 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. and the learned counsel representing first informant have opposed the prayer for bail. They submit that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Applicant is the author of the fatal head injury sustained by Hriday Narayan since deceased. As such, the case of the present applicant is clearly distinguishable from other co-accused who have already enlarged on bail. However, the learned A.G.A. and the learned counsel representing first informant could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this repeat application for bail with reference to the record at this stage.
8. 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, complicity of accused and coupled with the fact that it an admitted fact to the learned counsel for parties in respect of the same occurrence, cross F.I.R's. have been lodged, in view of above the primary question to be considered by Court below is who is the aggressor in the crime in question, the said question cannot be answered at interim stage but only after the entire evidence has been recorded, the applicant is being tried for the crime in question by way of Sessions Trial No.736 of 2021 (State Vs. Vinod and others) in which according to the learned counsel for informant the statement of all prosecution witnesses have been recorded, however, connected Sessions Trial No.869 of 2023 (State Vs. Abhay Narayan and others) but arising out of F.I.R. lodged from the side of present applicant is still in progress and only two prosecution witnesses have been examined upto this stage, in view of above, the evidence sought to be relied upon by the prosecution against applicant now stands crystallized, therefore, no good ground exists to prolong the custodial arrest of applicant during the pendency of trial, the clean antecedents of the applicant, the period of incarceration undergone and inspite of the fact that the charge sheet has been submitted and therefore, the entire evidence sought to be relied upon by the prosecution stands crystallized yet inspite of above, the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of Supreme Court in Sumit Subhaschandra Gangwal (Supra), therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to this repreat application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.
9. Accordingly, the bail application is allowed.
10. Let the applicant-Chandan, 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.
11. 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 :- 7.5.2024
Imtiyaz
