Monu @ Devraj Giri vs State
2020 Latest Caselaw 1101 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      Crl. M.(Bail) No. 489/2019 in Crl.A.283/2019

                    ORDER reserved on :20.12.2019
                      Date of decision : 18.02.2020

       MONU @ DEVRAJ GIRI                  ..... Petitioner
                   Through:           Mr.Vikas Sharma, Advocate
                   versus

       STATE                                      ..... Respondent
                         Through:     Mr. Sanjeev Sabharwal, APP
                                      for State
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA

                                 ORDER

ANU MALHOTRA, J.

1. The applicant Monu @ Devraj Giri, who vide judgment dated 31.1.2019 of the learned Trial Court of the Additional Sessions Judge- 02, North-West, Rohini has been convicted for offences punishable under Sections 392/394/34 of the Indian Penal Code, 1860 and Section 411 of the Indian Penal Code, 1860 in relation to FIR No. 774/2016, PS Vijay Vihar, vide the present application seeks suspension of sentence during the pendency of the appeal.

2. The Nominal Roll received from the Superintendent (Jail) indicates that as on 17.7.2019, the applicant had undergone two (2) years seven (7) months and Twenty Three (23) days incarceration and has thus undergone more than 3 years of incarceration till date. The applicant, vide the impugned order on sentence dated 1.2.2019 has

been sentenced to go rigorous imprisonment for a period of 3 years for the offence punishable under Section 392/34 and to a fine of Rs.15,000/-, 6 years of rigorous imprisonment for the offence punishable under Section 394 of the Indian Penal Code and to pay a fine of Rs.15,000/- and to go rigorous imprisonment for a period of 1 year and to pay a fine for Rs.5000/- for the offence punishable under Section 411 of the Indian Penal Code, apart from the default of sentences imposed for non-payment of the fine. In as much as the appeal has been admitted vide order dated 15.3.2019 in terms of Section 357(2) of the CrPC 1973, the deposit of the fine imposed vide the impugned order on sentence dated 1.2.2019 is kept in abeyance during the pendency of the appeal.

3. The applicant submits that he is judicial custody since the date of his arrest i.e., 8.10.2016 and that he has been admitted to bail in relation to the FIR No. 727/2016, PS Murad Nagar, registered under Sections 392/412 of the Indian Penal Code and FIR NO. 754/2016, PS Murad Nagar, under Section 25 of the Arms Act, 1959 and submits that the aspect that the petitioner was produced in an unmuffled face on 24.11.2016 before the Court of the learned Metropolitan Magistrate and that it was also so recorded by the learned Additional Sessions Judge on 30.11.2016 to the effect that the applicant was produced in an unmuffled face as a consequence thereof the Test Identification Proceedings conducted qua the applicant on 21.12.2016 was valueless, was not considered by the learned Trial Court.

4. The State has vehemently opposed the prayer made by the applicant putting forth the facts of the case to the effect that on the

intervening night of 23-24.09.2016, the complainant Bhisham Singh was sitting in his car bearing No. DL-6CP-4009 and was briefing the route to his driver named Deepak and while he was so briefing a person approached the driver and asked him the way to the highway and when he was informed the way, the person started hitting the driver with the butt of a pistol on his head and when he objected two other boys entered into the car from the back window and started hitting on his head. The status report submitted by the State further indicates that they threw him out of the car and fled away from the spot with his above said car and that both victims i.e., Bhisham Singh and his driver were got medically examined at the BSA Hospital, Rohini, Delhi and on the complaint of Bhisham Singh, the FIR was registered and the investigation was taken up. The status report further states to the effect that during the course of investigation, an information was received from PS Murad Nagar, Ghaziabad, UP that the said car bearing No. DL-6CP-4009 was used in the commission of a robbery and that the FIR No.727/2016, under Section 392 of the Indian Penal Code, PS Murad Nagar was registered and one Monu @ Devraj Giri, i.e., the present applicant had been arrested and that the said car had been recovered. As per the Status report, production warrants were issued and the applicant was produced and was interrogated and during the interrogation he disclosed the names of other associates and on 21.12.2016, the Test Identification Proceedings qua the applicant were conducted at the Central Jail in which the petitioner was duly identified by the complainant Bhisham Singh.

5. Placed on record is the testimony of PW6 SI Vijay Kumar, the Investigating Officer of the case who in his cross-examination had stated that the accused, i.e., the applicant was produced in an unmuffled face in the Rohini Courts on 24.11.2016 and that the Investigating Officer in his application had stated that the accused when produced on the next date would be produced in a muffled face.

6. It has been submitted on behalf of the State that the applicant is involved in nine cases and has been held guilty. The applicant's Nominal Roll received from the Superintendent Jail, Delhi, shows the details of cases against the applicant to the effect that other than the FIR No. 774/2016, PS Vijay Vihar in which he has been convicted and in which the present application has been filed, being to the effect:

     FIR No.              U/S                 P.S.              STATUS
                  392/412 IPC        Murad Nagar, UP        ON BAIL
727/2016
                  2/3 GANSTER ACT    MASOORI, UP            PENDING
140/2015
                  302/120B IPC       MASOORI, UP            PENDING
355/2015
                  395/419/506 IPC    MURAD NAGAR UP         PENDING
68/2017

                  379/411 IPC        SAHIBABAD UP           PENDING
768/2017

7. The applicant has placed on record the certified copies of the following orders:

i) Order dated 12.7.2013 in FIR No. 98/13, PS Loni registered under Sections 2/3 Gangster Act, vide which he was granted bail;

ii) Order dated 29.11.2016 in FIR No. 754/2016, PS Muradnagar, Distt.Ghaziabad under Section 25 Arms Act vide which he was granted bail;

iii) Order dated 25.11.2016 in FIR No.726/2016, PS Muradnagar to indicate that he has been released on bail therein by the Hon'ble High Court at Allahabad in Crl.M.B No. 41128/16 to indicate that the applicant is on bail in FIR No. 727/16 under Section 395/412 of the Indian Penal Code, 1860 and ;

iv) Order dated 20.1.2016 of the Hon'ble High Court of Allahabad in Crl.M.Bail No. 17691/2015 to indicate that qua Case Crime No.1013/2014 PS Mussoorie, District Ghaziabad in relation to the offences punishable under Sections 302/120B/34 of the Indian Penal Code, 1860, he is on bail and;

v) Vide order dated 22.2.2016 in Crl. Misc. Bail Application No. 5248/2016, the applicant has been granted bail in case Crime No. 123/2015 under Section 2/3 of U.P.Gangsters & Anti Social Activities (Prevention) Act, 1986, PS Mussoorie, District Ghaziabad.

8. It has thus been submitted on behalf of the applicant that in the case in which he was arrested i.e. FIR No. 727/2016, PS Murad Nagar, the applicant has already been granted bail and in as much as he has

been not properly identified through the Test Identification Proceedings, he be released on bail.

9. The complainant Bhisham Singh has identified the applicant in Test Identification Proceeding dated 21.12.2016 and in his deposition before the Court on 18.7.2017. However, it cannot be overlooked that it is the avowed contention of the petitioner that he was produced before the Court on 24.11.2016 in an unmuffled face as has also been stated by the Investigating Officer, SI Vijay Kumar. The complainant Bhisham Singh in his deposition dated 18.7.2017 states that he had seen the accused in an unmuffled face at the Rohini Court when he was produced from Murad Nagar and that the TIP proceedings were conducted 15 days later.

10. Taking the said aspect into account without any observations on the merits or demerits of the appeal in as much as the petitioner has already spent more than 3 years and one month of incarceration and is on bail in two other FIRs, the applicant is allowed to be released on bail on his furnishing a personal bond in the sum of Rs.1,00,000/- with two sureties in the like amount to the satisfaction of the Trial Court with the directions that he shall not leave the country, shall not make any contact with the witnesses and shall commit no offence whatsoever and shall appear on each day of hearing of the present appeal.

The Crl.M.Bail No. 489/2019 is disposed of.

ANU MALHOTRA, J.

th FEBRUARY 18 ,2020/SV