Bachcha Chaudhary @ Bacheha ... vs The State Of Bihar
2021 Latest Caselaw 4805 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (SJ) No. 5899 of 2019
        Arising Out of PS. Case No.-69 Year-2019 Thana- CHANDI District- Nalanda
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Bachcha Chaudhary @ Bacheha Choudhary @ Sanjeev Kumar, aged about 20 years, Male, Son of Raju Chaudhary, Resident of Village- Satnag, PS- Chandi, District- Nalanda.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

 For the Appellant/s      :        Ms. Vaishnavi Singh, Advocate
 For the State            :        Ms. Usha Kumari No. 1, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 28-09-2021

Heard Ms. Vaishnavi Singh, learned counsel for the

appellant and Ms. Usha Kumari No. 1, learned Special Public

Prosecutor (hereinafter referred to as the 'Special PP) for the

State.

2. The present appeal is directed against the order dated

05.12.2019 passed by the learned 1st Additional Sessions Judge,

Nalanda at Biharsharif in ABP No. 2969 of 2019 by which prayer

for anticipatory bail of the appellant has been rejected.

3. The appellant apprehends arrest in connection with

Chandi PS Case No. 69 of 2019 dated 24.02.2019, instituted under

Sections 302/34 of the Indian Penal Code, 1860 and 3(1)(r)(s) of

the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as the 'SC/ST Act').

Patna High Court CR. APP (SJ) No.5899 of 2019 dt.28-09-2021

4. The allegation against the appellant and three other

named accused is of killing the brother of the informant.

5. Learned counsel for the appellant submitted that as

per the FIR, the brother of the informant i.e., the deceased, was

called by all the four accused, including the appellant, at 7:00 PM

on 22.02.2019 and despite the informant and his family members

looking for him, he could not be located and the next morning on

23.02.2019 at 5:00 AM, when the informant had gone to attend the

call of nature, he came to know that the dead body of his brother

has been found. It has been alleged that earlier the accused had

threatened to kill the deceased as he was opposing their trade in

liquor.

6. Learned counsel for the appellant submitted that

without there being any truth in the allegation, on mere suspicion

and also to humiliate him, the present FIR has been lodged, which

would be apparent from the fact that a day prior to lodging of the

present FIR, the informant soon after recovery of the dead body of

his brother, which was found hanging from a tree, had lodged a

UD case with the police in which there is not even a whisper of

any suspicion against the appellant, much less allegation about

any threat being issued by the accused. It was further pointed out

that in the present FIR, the fact of lodging a UD case a day prior Patna High Court CR. APP (SJ) No.5899 of 2019 dt.28-09-2021

has not even been indicated. Learned counsel submitted that the

other three co-accused, who have been arrested, have been granted

bail by co-ordinate Benches and the fact that of a UD case being

filed by the informant a day prior to the lodging of the present FIR

has been noticed. In support thereof, learned counsel has

forwarded web copies of the order dated 06.02.2020 by which

Vijendra Chaudhary has been granted bail by a co-ordinate Bench

in Cr. Appeal (SJ) No. 3391 of 2019; order dated 05.11.2020 by

which Mantu Gope has been granted bail in Cr. Appeal (SJ) No.

1665 of 2020 and order dated 01.12.2020 by which Raju

Choudhary has been granted bail in Cr. Appeal (SJ) No.1348 of

2020. It was submitted that the appellant having no criminal

antecedent is being harassed and as the version in the FIR is

falsified and discredited by the conduct of the informant himself

and, thus, the bar of Section 18 of the SC/ST Act would not apply.

7. Learned APP submitted that as per the allegation, the

accused, including the appellant, had threatened the deceased.

However, he could not controvert the fact that there was a UD

case registered by the informant a day prior upon recovery of the

body of his brother and the present FIR has been filed one day

after that in which there is no indication of the informant earlier

filing a UD case.

Patna High Court CR. APP (SJ) No.5899 of 2019 dt.28-09-2021

8. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, in view of

the conduct of the informant of not making any allegation or even

raising any suspicion against the appellant in the UD case upon

recovery of the body of his brother and thereafter only later on the

next day lodging the present case in which suspicion has been

raised stating that the appellant along with three others had

threatened the deceased, as also the fact that he does not have any

other criminal antecedent, the Court is inclined to allow the prayer

for pre-arrest bail.

9. Accordingly, in the event of arrest or surrender before

the Court below within six weeks from today, the appellant be

released on bail upon furnishing bail bonds of Rs. 25,000/-

(twenty five thousand) with two sureties of the like amount each

to the satisfaction of the learned 1st Additional Sessions Judge,

Nalanda at Biharsharif in Chandi PS Case No. 69 of 2019 subject

to the conditions laid down in Section 438(2) of the Code of

Criminal Procedure, 1973 and further, (i) that one of the bailors

shall be a close relative of the appellant, (ii) that the appellant and

the bailors shall execute bond and give undertaking with regard to

good behaviour of the appellant and (iii) that he shall co-operate

with the Court and police/prosecution. Any violation of the terms Patna High Court CR. APP (SJ) No.5899 of 2019 dt.28-09-2021

and conditions of the bonds or the undertaking or failure to co-

operate shall lead to cancellation of his bail bonds.

10. It shall also be open for the prosecution to bring any

violation of the foregoing conditions by the appellant, to the

notice of the Court concerned, which shall take immediate action

on the same after giving opportunity of hearing to the appellant.

11. Accordingly, the order impugned is set aside and the

appeal stands allowed.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR U T