Allahabad High Court
Majid vs State Of U.P. on 4 April, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on : 28.03.2023 Delivered on :04.04.2023 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11873 of 2022 Applicant :- Majid Opposite Party :- State of U.P. Counsel for Applicant :- Bhuvnesh Kumar Singh,Manoj Kumar Tripathi,Vinod Kumar Tirpathi Counsel for Opposite Party :- G.A.,Mahipal Singh Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Vinod Kumar Tirpathi, learned counsel for applicant, Sri Mahipal Singh, learned counsel for complainant/informant and Sri Sunil Srivastava, learned A.G.A. appearing on behalf of State.
2. This is second bail application on behalf of applicant who is confined in jail since 23.04.2020 in Case Crime No. 71 of 2020, under Sections 302, 323, 504, 506 I.P.C, Police Station- Kiratpur, District- Bijnor.
3. First bail application filed on behalf of applicant was rejected by a reasoned order dated 13.07.2021 and for reference, relevant paragraphs No. 13, 14 and 15 of the said order are mentioned hereinafter :-
"13.In the present case, applicant has not only tried to mislead this Court despite having criminal history of six cases including the present one but, wrong declaration was made in the affidavit filed in support of the bail application that the applicant has no criminal history. Learned counsel for the applicant has not been able to rebut the fact that the applicant has a criminal history of seven cases.
14.There are serious charges against the applicant who caused fatal blow on the deceased. Even the weapon used in the crime was recovered on his pointing out from his house.
15. Considering that there are serious charges against the applicant and also that the applicant has not approached this Court with clean hands, no case of bail is made out."
4. Sri Vinod Kumar Tripathi, learned counsel for applicant at the outset has submitted that in present application, details of criminal history of applicant has been disclosed in its paragraph No.24 and for reference, the said paragraph is mentioned hereinafter: -
"24. That the applicant has falsely implicated in six cases and the details of which with explanation is as follows :-
(i) Crime No.1139 of 2008 under Sections 323/34, 324/34 and 325/34, 504, 506 I.P.C., P.S. Kiratpur, District -Bijnor. In the aforesaid case, the applicant has already acquitted by the trial court vide judgment and order dated 25.07.2012.
(ii) Crime No.73 of 2015 under Sections 420, 406, 489-B I.P.C., P.S.- Nangal, District-Bijnor. In the aforesaid case, the applicant has been released on bail by the court below on 13.01.2016.
(iii) NCR No.1 of 2016 dated 02.02.2016 under Sections 323, 504, 506 I.P.C., P.S.-Kiratpur, District-Bijnor. In pursuance of the aforesaid NCR, no further proceedings initiated against the applicant in any court of law.
(iv) Crime No.33 of 2018 under Sections 147, 323, 504, 332, 333 I.P.C., P.S. Kiratpur, District- Bijnor. In the aforesaid offence, this Hon'ble Court has stayed the arrest of the applicant vide order dated 07.03.2018 passed by this Hon'ble Court in Criminal Misc. Writ Petition No.5594 of 2018.
(v) Crime No.534 of 2017 under Section 147, 148, 149, 406, 420, 307, 506 I.P.C., P.S. - Kiratpur, District-Bijnor. In the aforesaid offence, the applicant has been released on bail by the court below vide order dated 25.01.2018.
(vi) Case No.D201813160001363 (1363/2018) under Section 3(1) of U.P. Control of Gundas Act, 1970. In the aforesaid matter, the Additional District Magistrate (Administration), Bijnor passed the externment order dated 15.07.2019 against the applicant for period of six months. The time period of aforesaid externment order has already been expired. Except the aforesaid cases, no other case was registered against the applicant prior to the present offence and in aforementioned all the cases, the applicant has been falsely implicated."
5. Learned counsel further submitted that in view above referred details of the status of applicant therein, the present bail application may be considered without being influence of criminal history of applicant and it may be considered on basis of following argument on merit as well as because subsequent events that :-
(i) There was a cross version of present occurrence also, however, prompt attempt, F.I.R. was not lodged and, therefore, an application under Section 156(3) Cr.P.C. was filed on 23.06.2020 and on basis of an order passed by learned Magistrate, finally, F.I.R. bearing No.0062 of 2021 was lodged on 10.03.2021 against complainant side for committing offences under Sections 147, 148, 149, 354, 452, 323, 504, 506 I.P.C at P.S. Kiratpur, District Bijnor. Learned counsel also referred injury report of applicant that he has suffered one lacerated and one incised wound.
(ii) Learned counsel further submitted that the fact that an F.I.R. was lodged in cross case, was not brought into notice of this Court while considering first bail application as the Pairokar is an aged mother of applicant and she has no knowledge about any order passed by learned Magistrate and lodging of F.I.R.
(iii) Learned counsel has referred an order passed by Supreme Court in case of Mukesh Kumar Vs. State of Rajasthan in Petition for Special Leave to Appeal(Crl.) No. 11714 of 2022 decided on 15.02.2023 that while considering a bail application, existence of a cross version would be a relevant factor, specifically when both sides have suffered injuries as the question as to who was aggressor cannot be decided at the stage of bail as the same will depend upon the appreciation of evidence to be led before learned trial court.
(iv) Learned counsel for applicant also referred a judgment passed by Division Bench of this Court in Dayaram and others Vs. State of U.P. in Criminal Appeal No. 3823 of 2008 dated 30.04.2012 wherein while considering an application for suspension of sentence has observed by the Division Bench that in cases of cross version, right of defence, if taken during trial, may also be a relevant factor.
(v) Learned counsel also referred that there are major contradiction in statement of witnesses during investigation. The prosecution story appears to be doubtful as well as that trial is proceeding in a snail's speed.
6. Per contra, learned A.G.A. for State and learned counsel for complainant/informant vehemently opposed the above submissions that lodging of an F.I.R. in cross version is not subsequent event as on basis of an order passed by learned Magistrate said F.I.R. was lodged on 10.03.2021 i.e. much prior to rejection of first bail application by this Court vide an order dated 13.07.2021. The fact which was available with applicant at the time of hearing of first bail application but not presented before this Court may not be a subsequent ground for consideration in second bail application.
7. Learned A.G.A. further submitted that applicant has a criminal history of six cases though in one of cases that he has been acquitted, however, reason for acquittal was that prosecution witnesses were declared hostile, however, in other cases, offences are under Sections 307, 323, 489-B and in one case applicant was granted stay from arrest till the filing of charge-sheet, however, it has not been brought on record whether, in that case any charge-sheet has been filed or not. Learned counsel further submits that trial is proceeding and evidence of P.W.1 is about to be concluded.
8. Heard counsel for parties and perused the record.
9. This is second bail application and as referred above, the first bail application was rejected mainly on grounds that applicant has suppressed criminal history as well as there are serious charges against the applicant he caused fatal blow on deceased as well as alleged weapon used in crime was recovered on his pointing out. There is no averment that said order was challenged before Supreme Court, therefore, the findings given therein still exist against applicant and an attempt of counsel for applicant to show that reasons are not correct, does not appeal the Court as it appears to be contrary to record i.e. contents of First Information Report, details of ante-mortem injuries in post-mortem report, statements of alleged eye-witness namely, Muzzaffar, Taslima as well as recovery of weapon.
10. In the present case, the applicant has disclosed criminal history of six cases and as referred above there are major charges against him under Section 489-B i.e. an offence in regard to counterfeit currency notes, Section 307 I.P.C. i.e. attempt to murder, grievous hurt on provocation (Section 325) as well as voluntarily causing grievous hurt to deter public servant from his duty(Section 333 I.P.C.).
11. From the above facts it transpires that applicant while on bail in another cases has misused his liberty and allegedly committed other offences including an offence in present case.
12. The main argument of learned counsel for applicant is that there is a cross version also of present occurrence, wherein an F.I.R. has been lodged in pursuance of an order passed by learned Magistrate on an application filed under Section 156(3) Cr.P.C. and as such at this stage, it cannot be decided who was the aggressor and for that he has placed reliance on Mukesh Kumar(supra) and Dayaram(supra). In order to deal with above submission, I have carefully perused the contents of F.I.R. dated 10.03.2021 lodged in cross version which is filed under Section 147, 148, 149, 354, 452, 323, 504, 506 I.P.C. however, status of investigation has not been placed on record. Nature f injuries were not opined to be ''grievous' and, therefore, it would fall under ''Hurt' as defined under Section 319 I.P.C.
13. In Mukesh Kumar(supra), offence involved was under Section 302 I.P.C. as well as cross version F.I.R. was under Section 307, where as Dayaram(supra), this Court has considered the evidence led before trial court, whereas in present consideration of bail has to be on basis of statements recorded during investigation and as referred above and that evidence against applicant was that he was author of the fatal blow.
14. It would be apposite to refer paragraph No.21 of a judgment passed by Supreme Court in Ex. Ct. Mahadev Vs. Director General Border Security Force and others, (2022) 8 SCC 502 that :-
"21. To sum up, the right of private defence is necessarily a defensive right which is available only when the circumstances so justify it. The circumstances are those that have been elaborated in the IPC. Such a right would be available to the accused when he or his property is faced with a danger and there is little scope of the State machinery coming to his aid. At the same time, the courts must keep in mind that the extent of the violence used by the accused for defending himself or his property should be in proportion to the injury apprehended. This is not to say that a step to step analysis of the injury that was apprehended and the violence used is required to be undertaken by the court; nor is it feasible to prescribe specific parameters for determining whether the steps taken by the accused to invoke private self-defence and the extent of force used by him was proper or not. The court's assessment would be guided by several circumstances including the position on the spot at the relevant point in time, the nature of apprehension in the mind of the accused, the kind of situation that the accused was seeking to ward off, the confusion created by the situation that had suddenly cropped up resulting in the knee-jerk reaction of the accused, the nature of the overt acts of the party who had threatened the accused resulting in his resorting to immediate defensive action, etc. The underlying factor should be that such an act of private defence should have been done in good faith and without malice."
15. In view of above discussion as well as considering the contents of First Information Report of cross case also, though it may not be a subsequent event and also taking note of Ex. Ct. Mahadev(supra), nature of injury received on deceased and accused side, the alleged right of defence, prima facie may not be proportion to the injury apprehended. Therefore, present bail application fails on every ground raised. Hence second bail application is rejected.
16. The Court while taking note that applicant is in jail since 23.04.2020 and trial is moving in a slow pace, therefore, learned trial court is directed to expedite the trial.
Order Date : 04.04.2023 P. Pandey