Allahabad High Court
Akshay Dubey vs State Of U.P. on 22 May, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:92462
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18060 of 2022
Applicant :- Akshay Dubey
Opposite Party :- State of U.P.
Counsel for Applicant :- Bhavisya Sharma,Sarvesh Kumar Dubey
Counsel for Opposite Party :- Akash Mishra,G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Sarvesh Kumar Dubey, learned counsel for applicant, Sri Akash Mishra, learned counsel for complainant and Sri Bhupendra Pal Singh, learned A.G.A. for State.
2. Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No. 247 of 2020 under Sections 147, 148, 149, 302, 307, 504, 34 I.P.C., Police Station- Saifai, District - Etawah.
3. The applicant before this Court along with other co-accused is facing trial for offence of committing murder and offence of attempt to murder while doing an act in furtherance of common object of unlawful assembly and in furtherance of common intention.
4. Learned counsel for applicant submits that in occurrence one person died and two persons got injured. Statement of two injured witnesses have already been recorded during trial and he is in jail since 29.10.2020 i.e. few months less than four years. Learned counsel further submits that now there is no apprehension that applicant may influence any witness. He further submits that according to prosecution story and statements of injured witnesses, role assigned to applicant is to cause fire-arm injury to injured persons who survived. He fairly submits that co-ordinate Benches of this Court have rejected the bail applications of co-accused Umakant Dubey, Anshul Dubey and Anurag Dubey who have also been assigned role of firing on deceased.
5. Per contra, learned counsel for complainant and learned A.G.A. for State have opposed the bail and submit that presence of applicant is fixed by testimony of injured witnesses recorded during trial and that he was also armed with an unlicensed fire-arm along with co-accused and has actively participated in occurrence and also fired. At this stage, role of applicant could not be distinguished. Learned counsel for complainant has placed reliance on a judgment passed by Supreme Court in case of Manno Lal Jaiswal Vs. State of U.P. and another, 2022 (119) ACC 251 that when accused were charged for offences punishable under Section 149 I.P.C. also and when their presence has been established and it is stated that they were part of unlawful assembly, the role and/or overt act by the individual accused is not significant and/or relevant.
6. In the present case, as referred, applicant along with other co-accused have formed an unlawful assembly and attacked on complainant side and started indiscriminatory firing which led to death of one person and two persons got injured. The Court takes note of reason assigned by co-ordinate Bench of this Court while rejecting the bail applications of co-accused Umakant Dubey and Anshul Dubey, which are reproduced hereinafter :-
"After hearing the rival submissions, the Court is of the view that the applicant who is son of Umakant Dubey were nurturing an inimical with his collaterals on account of partition of ancestral property and after hatching a ploy all of them including the applicant have surrounded the deceased and indiscriminately fired upon the deceased in a broad day light. There is no mistaken identity with regard to the assailant nor there could be any reason for false implication of the assailants/accused persons and their active participation in commission of the offence.
Taking into account the totality of the circumstances the way and manner this murder of Arvind Dubey @ Ashu was committed, witnessed by her own mother and brother the injured, this Court has no justifiable reason to exercise his power under Section 439 Cr.P.C. in favour of the applicant and accordingly, the bail application of the applicant stands rejected. "
7. The Court also takes note the reason assigned while rejecting the bail of co-accused Anurag Dubey by other co-ordinate Bench. The Court takes note of argument of counsel for complainant that at this stage that since presence of applicant is fixed from the testimony of injured witnesses and it has also come that applicant was part of unlawful assembly and that he has participated in occurrence and fired also, therefore, at this stage, considering role assigned to him, serious grievousness of crime could not be diluted qua to applicant only on ground that he has been assigned role of firing on injured persons and not on deceased.
8. The Court further takes note that applicant has participated in crime along with other co-accused after forming unlawful assembly and came with an unlicensed fire-arm and fired also, due to that two persons got injuries. Testimony of injured witnesses also corroborates the prosecution story in its entirety. In the aforesaid circumstances, I do not find that it is fit case to grant bail, however, considering that applicant is in jail since 29.10.2020 i.e. few months less than four years, learned Trial Court is directed to expedite the trial and in case, it is not substantially progressed within 10 months from today, applicant will have liberty to approach this Court or Trial Court as advised along with status of trial.
9. Accordingly, bail application is rejected with aforesaid observation.
10. Registrar (Compliance) to take steps.
Order Date :- 22.5.2024
P. Pandey
