Allahabad High Court
Shamsher Singh @ Pappu vs State Of U.P. on 29 November, 2022
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42857 of 2022 Applicant :- Shamsher Singh @ Pappu Opposite Party :- State of U.P. Counsel for Applicant :- Ashok Kumar Pandey Counsel for Opposite Party :- G.A.,Bhuwan Raj,Rajnish Dubey,Sahibe Alam,Sanjeev Kumar Tyagi Hon'ble Manish Mathur,J.
1. Counter affidavit on behalf of informant as well as rejoinder affidavit filed on behalf of applicant are taken on record, 1A. Heard learned counsel for applicant, Mr. S.K. Tyagi learned counsel for informant and learned Additional Government Advocate appearing on behalf of State and perused the record.
2. The present application for grant of bail has been filed by the applicant, who has been implicated in Case Crime No. 120 of 2022, under Sections 147, 148, 149, 307, 302, 504 IPC, Police Station Vindhyachal, District Mirzapur, wherein the allegation is that the co-accused Pappu alias Kareem with JCB Machine was excavating earth from the fields of informant side which was objected by them, whereafter accused Krishna Kumar @ Kallu, Ishwari Prasad @ Gappu, Guddu Singh, Dhirendra Singh, Sajjan Singh, Rajju Singh along with applicant, armed with lathi, danda and revolver, assaulted the informant side in which two brothers Rajesh and Chandra Shekhar sustained gunshot injury and Rajesh has died.
3. Learned counsel for the applicant has placed before the Court a certified copy of cross FIR lodged in the same incident as Case Crime No.121 of 2022, wherein injuries have been sustained by the members of accused party also and the informant side are the persons accused therein. Injuries are said to have been caused to the accused party also.
4. Learned counsel for the applicant contends that permission for excavating earth was granted by members of accused party and while the co-accused was doing so, an objection was raised by the informant, who owns the adjoining plot. It is, thereafter that accused and informant sides, both of whom have adjoining lands, entered in a free fight in which members of both sides have sustained injuries. It is also stated that injuries caused to the informant side is two gunshot wound and the author of these two shots is accused Ishwari Prasad @ Gappu who has clearly admitted so in his statement under section 161 Cr.P.C. It is urged that other witnesses have also assigned the role of firing to Ishwari Prasad @ Gappu and that no role of firing etc. has been assigned to the present applicant, who otherwise has no criminal history. It is further argued that custodial interrogation is no longer required as the charge sheet has been submitted and the trial is likely to take sufficiently long and that the applicant undertakes that he will not misuse the liberty of bail and will cooperate in the conduct of trial. The applicant is in jail since 13.07.2022.
5. Learned AGA as well as learned counsel for the informant have opposed the bail application on the ground that several persons have sustained injuries and the genesis of fight between the parties is the complaint of the co-accused Pappu alias Kareem and, therefore, it is on his asking that the entire episode has occurred.
6. Learned cousnel for informant submits that the investigation conducted in the matter was not fair and the actual statement of injured witness Chandra Shekhar has not been correctly recorded nor has the dying declaration of Rajesh been recorded which was provided to the police in a pen drive by the informant but do not find any mention in the case diary. It is submitted that an application to that effect was given to the Senior Superintendent of Police, District Mirzapur with regard to the link in investigation which he submits is required to be verified particularly since in his dying declaration, the deceased has clearly implicated the applicant as well.
7. Learned A.G.A. however upon perusal of case diary submits that there is no such dying declaration on record and the statement of injured witness Chandra Shekhar is the only one which is annexed to the bail application. The complaint made allegedly by the informant to the Superintendent of Police brought on record as C.A.-2. however does not bear any date, signature of informant or any receiving by the authority concerned. It also does not find any mention in the case diary as available with learned A.G.A. and therefore no cognizance thereof is being taken at this stage.
8. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
9. Having considered the respective submissions advanced and upon perusal of the materials placed on record as also considering the fact that role of firing has not been assigned to the applicant, rather, it has been assigned to Ishwari Prasad @ Gappu and the applicant otherwise has no criminal history and trial may take sufficiently long, without further commenting upon merits of the case, this Court is of the opinion that the applicant is entitled to be released on bail, at this stage. Above observations made in the bail order shall, however, not be construed as expression of opinion, on the merits, at the stage of trial.
10. Let the applicant Shamsher Singh @ Pappu involved in aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, with the following conditions, which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iv) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(v) In case the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Accordingly, the present bail application is allowed.
Order Date :- 29.11.2022 Prabhat