Allahabad High Court
Munish vs State Of U.P. on 28 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:152050 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29337 of 2023 Applicant :- Munish Opposite Party :- State of U.P. Counsel for Applicant :- Vipul Shukla,Radhey Shyam Shukla Counsel for Opposite Party :- G.A.,Neelabh Srivastava Hon'ble Rajeev Misra,J.
1. Heard Mr.Radhey Shyam Shukla, the learned counsel for applicant, the learned A.G.A. for State and Mr. Neelabh Srivastava, the learned counsel representing first informant.
2. Perused the record.
3. This application for bail has been filed by the applicant Furkan seeking his enlargement on bail in Case Crime No. 567 of 2022, under Sections 323, 325, 504, 506, 302, 307, 34 IPC, Police Station Nigohi, District Shahjahanpur during the pendency of the trial.
4. Record shows that in respect of an incident which is alleged to have occurred on 22.11.2022, a prompt F.I.R. dated 22.11.2022 was lodged by first informant Harishankar and was registered asCase Crime No. 567 of 2022, under Sections 147, 148, 149, 323, 504, 506, 302 IPC, Police Station Nigohi, District Shahjahanpur. In the aforesaid F.I.R. five persons namely (i) Mewaram, (ii) Harish, (iii) Munish, (iv) Satish and (v) Shivankal have been nominated as named accused.
5. As per the prosecution story as unfolded in the aforementioned F.I.R. one person namely Radheyshyam died whereas seven other persons sustained injury. The post-mortem report of the deceased Radheyshyam is on record at page 68 of the paper book whereas injury reports of the injured have been collectively brought on record as Annexure no. 5 to the affidavit filed in support of the present application for bail.
6. Record further shows that in respect of the same incident an application under Section 156(3) Cr.P.C. was filed by Shiv Kumar before the concerned Magistrate. The same was allowed. Resultantly, an F.I.R. dated 5.1.2023 came to be registered as Case Crime No. 0014 of 2023 under Section 147, 148, 149, 341, 323, 307 IPC, Police Station Nigohi, District Shahjahanpur. In the aforesaid F.I.R. as many as nine persons namely (i) Radheyshyam, (ii) Vipin @ Vikas, (iii) Mukesh, (iv) Sonpal, (v) Harishankar, (vi) Madhubala @ Bala, (vii) Smt. Suman, (viii) Shivam @ Shekhar, (ix) Pradeep have been nominated as named accused.
7. As per the prosecution story unfolded in the aforementioned F.I.R. four persons from the side of first informant sustained injuries. The medico-legal reports of the injured have been brought on record collectively as Annexure-16 to the affidavit filed in support of the bail application.
8. On the above premise, the learned counsel for applicant contends that since there are cross F.I.R.s regarding the same incident, therefore, the occurrence admitted to the parties. The primary question that is to be decided is as to who is the aggressor. From the material that has emerged on record up to this stage, there is nothing to indicate regarding the said issue. Even otherwise with reference to the F.I.R. giving rise to the present application for bail. he submits that deceased has died on account of gun-shot injuries sustained by her. The named accused Harishankar has been assigned the role of firing. Even on that ground also the case of the present applicant is clearly distinguishable from named and charge sheeted accused Harishankar. The manner of assault in respect of the injured has not been detailed either. It is, thus, urged that applicant is liable to be enlarged on bail. 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 25.11.2022. As such he has undergone more than eight months 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. However no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, 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 cooperate with the trial.
9. Per contra, the learned A.G.A. andMr. Neelabh Srivastava, the learned counsel representing first informant have opposed the prayer for bail. They submit that on account of the act of named and charge sheeted accused including applicant one person has died whereas several other persons have sustained serious and fatal injuries. The criminality committed by named and charge-sheeted accused including applicant is joint and common. As such the same is incapable of being separated or segregated. It is thus urged that no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
10. Having heard the learned counsel for applicant, the learned A.G.A. for State,Mr. Neelabh Srivastava, the learned counsel representing first informant and upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and coupled with the fact that there are cross versions of the same occurrence, as such the occurrence is admitted to the parties, injuries have been sustained by various persons from both the sides, up to this stage, no such evidence has emerged on record on the basis of which the aggressor in the crime could be defined, the case of the present applicant is clearly distinguishable from named and charge sheeted accused Harishankar inasmuch as he is the author of the fatal gun-shot injuries sustained by the deceased, in spite of the fact that the police report in terms of Section 173(2) has been submitted, the learned A.G.A. and the learned counsel representing first informant could not point out any such material from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhash Chandra Gangwal and another Vs. State of Maharashtra and another 2023 Live Law SC 373(5), the clean antecedents of applicant, the period of incarceration undergone by the applicant, but without making any comments on the merits of the case the applicant has made out a case for bail.
11. Accordingly, the bail application is allowed.
12. Let the applicant Munish involved in Case Crime No. 567 of 2022, under Sections 323, 325, 504, 506, 302, 307, 34 IPC, Police Station Nigohi, District Shahjahanpur be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
i. The applicant will not tamper with the evidence during the trial.
ii. The applicant will not pressurize/ intimidate the prosecution witness.
iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
ix. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
x. 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
13. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 28.7.2023 Aiman