Allahabad High Court
Amar Bahadur Yadav vs State Of U.P. on 29 March, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 20.3.2023 Delivered on 29.3.2023 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11691 of 2023 Applicant :- Amar Bahadur Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Babu Ram Yadav Counsel for Opposite Party :- G.A.,Shyam Surat Shukla,Vivek Kumar Shukla Hon'ble Siddharth,J.
Heard Sri Babu Ram Yadav, learned counsel for the applicant; Sri Shyam Surat Shukla, learned counsel for the informant; learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Amar Bahadur Yadav, with a prayer to release him on bail in Case Crime No. 307 of 2020, under Sections 147, 149, 323, 504, 506, 427, 308 IPC, Police Station Handiya, District- Prayagraj, during pendency of trial.
There is allegation in the FIR that the applicant and four co-accused caused injuries on the head of the informant; on hands of injured, Akhilesh Pandey; near the eyes of injured, Dharmendra Kumar Mishra; on the head and leg of injured, Raj Kumar Pandey and also broken marshal car of the informant because of dispute regarding the land and after threatening them, they ran away.
Learned counsel for the applicant has submitted that it is a case of false implication. His real brother, Sheshmani Yadav, was badly beaten by the informant side. He suffered injuries on his jaw and lost one teeth as clear from his injury report dated 27.5.2020. He has submitted that there is no explanation of the aforesaid injury in the FIR lodged by the informant. NCR was lodged on 26.5.2020 with regard to the incident dated 25.5.2020 by the applicant under Sections 323, 504, 427 IPC against Akhilesh Pandey, Nirbhay Pandey, Rakesh Pandey and Dharmendra Singh. It has been submitted that FIR against the applicant is cross case of the aforesaid NCR. He has further submitted that no specific role has been assigned to the applicant in this case. It is not clear who out of five accused named in the FIR caused the alleged injuries to the injured persons. He has submitted that the injured, Raj Kumar, suffered four injuries, which were simple in nature; injured, Akhilesh Pandey, also suffered three simple injuries on his head and hands; injured, Dharmendra, also suffered three simple injuries on his head, right side back and right side of arm; injures, Rajesh Kumar Pandey, suffered lacerated wound size about 25.0 cm. X 1.0 cm. present over parital area of head right side 10 cm. above from left eyebrow and other four injuries were on the non vital parts. The doctor advised X-ray of skull, C.T. Scan, X-ray of knee. In the supplementary medical report of six injured, the injuries on the head of the injured, Rajesh Kumar Pandey were found to be fatal in nature. The doctor opined that injuries on head of injured, Rajesh Kumar Pandey, could have caused his death. Learned counsel for the applicant has submitted that only injury on the head of one injured, namely, Rajesh Kumar Pandey, was found to be fatal for life. Injuries suffered by other injured were simple. From the allegations in the FIR and statements recorded by the Investigating Officer, no specific role has been assigned to any of the five accused implicated in this case. All the accused persons have been implicated under Section 149 IPC alleging common object in commission of alleged crime alleged against them. Common object cannot be decided at the stage of consideration of bail application. The applicant has no criminal history to his credit and he is languishing in jail since 6.6.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Learned A.G.A. and learned counsel for the informant have vehemently opposed the prayer for bail of the applicant. Learned counsel for the informant has placed before this Court the certified copy of bail rejection order of co-accused, Sanjay Kumar Yadav and submitted that since the bail application of one of the co-accused has been rejected, it is not a fit case of grant of bail to the applicant.
After hearing rival contentions this Court finds that it is true that bail application of Sanjay Kumar Yadav has been rejected by co-ordinate Bench of this Court. From the injury reports of four injured persons, the only injury of fracture found on the head of the injured, Rajesh Kumar Pandey, was found to be fatal in nature. There is allegation against five accused persons in the FIR including the applicant of causing injuries to four persons. It is not known who is the author of the only injury on the head of one of the injured, Rajesh Kumar Pandey. There is no explanation of the injury suffered by the brother of the applicant, Sheshmani Yadav and why his motorcycle was broken. The cross report was lodged by the applicants side in the FIR and statement of witnesses, there is no mention of the injuries caused to Sheshmani Yadav nor the manner of incident, which resulted into injury to Sheshmani Yadav. Hence prosecution case lodged in the FIR does not seems to be correct. This Court in the case of Sanjeev @ Kallu Sethiya Vs. State of U.P., Criminal Misc. Bail Application No.18458 of 2022 discussed the ingredients for constituting the offence under Section 149 IPC and denying bail only on the basis of implication under Section aforesaid as follows:-
37. Section 149 I.P.C is one of the most misused, misinterpreted and misleading provision of the present times so far as the investigation by the Investigating Officers of police or any other investigating agency of crime is concerned. The edifice of Section 149 I.P.C stands on substratum of Sections 141 I.P.C, 142 I.P.C and 143 I.P.C. Chapter VIII of the IPC provides for offences against the public tranquillity. Section 141 I.P.C defines unlawful assembly to be an assembly of five or more persons. They must have a common object, amongst others, to commit any mischief or criminal trespass, or other offence. Section 142 I.P.C postulates that whoever being aware of facts which render any assembly an unlawful one, intentionally joins the same would be a member of the same. Section 143 provides for punishment of being a member of unlawful assembly.
38. Section 149 I.P.C provides for constructive liability to every person of an unlawful assembly. If an offence is committed by any member thereof in prosecution of common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. Formation of unlawful assembly having its common object and knowledge of common object are matters of fact which are required to be proved by the prosecution beyond all reasonable doubt for securing conviction of an accused under Section 149 I.P.C. There cannot be any straight jacket formula to arrive at a finding as to who was the member of unlawful assembly and for which object the same was formed. It can be inferred and proved by the cogent evidence only.
39. Section 149 I.P.C has following three essentials (i) there must be unlawful assembly; (ii) commission of offence may be by any member of unlawful assembly; (iii) such offence must have been committed in prosecution of the common object of the assembly, or must be such as member of the assembly knew to be likely to be committed.
40. Only when these three elements are satisfied an implication /conviction under Section 149 I.P.C may be sustained and not otherwise. The law of vicarious liability under Section 149 I.P.C is crystal clear that even mere presence in unlawful assembly, but with an active mind, to achieve the common object, makes a person vicariously liable for the act of unlawful assembly as held by the Apex Court in the case of Amerika Rai Vs. State of Bihar, 2011(4) SCC 677 and Ramchandran Vs. State of Kerala, 2011(9) SCC 257. Ramchandran (supra) in paragraph 25 to 27 relying upon earlier judgement held as follows :-.
25. Regarding the application of Section 149, the following observations from Charan Singh v. State of U.P., (2004) 4 SCC 205, are very relevant:
"13. ... The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. ... The word `object' means the purpose or design and, in order to make it `common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression `in prosecution of common object' as appearing in Section 149 has to be strictly construed as equivalent to `in order to attain the common object'. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter...."
26. In Bhanwar Singh v. State of Madhya Pradesh, (2008) 16 SCC 657, this Court held:
"Hence, the common object of the unlawful assembly in question depends firstly on whether such object can be classified as one of those described in Section 141 IPC. Secondly, such common object need not be the product of prior concert but, as per established law, may form on the spur of the moment (see also Sukha v. State of Rajasthan AIR 1956 SC 513). Finally, the nature of this common object is a question of fact to be determined by considering nature of arms, nature of the assembly, behaviour of the members, etc. (see also Rachamreddi Chenna Reddy v. State of A.P. (1999) 3 SCC 97 )".
27. Thus, this court has been very cautious in the catena of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. Number and nature of injuries is also relevant to be considered. "Common object" may also be developed at the time of incident.
41. The concept of constructive liability must not be so stretched as to lead to false implication of innocent person or if general allegations are made against large number of accused, the Court has to be cautious unless reasonable direct and indirect circumstances lend assurance to the prosecution case that all the accused shared common object of unlawful assembly and hence their implication / conviction not be justified, as held by the Apex Court in the case of Subal Ghorai and others Vs. State of West Bengal, 2013(4) SCC 607. Ready reference to paragraph 53 would be relevant :-
53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, Court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 of the IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."
42. Apex Court has also cautioned that when there is sudden action by one member in the assembly, all are not liable. In the case of Roy Fernandes Vs. State of Goa, 2012(3) SCC 221, it was held that a group attack on the victim is not the only decisive factor to infer common object of the unlawful assembly. It would be useful to refer to paragraph 27 to 33 in this context :-
27. This Court has in a long line of decisions examined the scope of Section 149 of the Indian Penal Code. We remain content by referring to some only of those decisions to support our conclusion that the appellant could not in the facts and circumstances of the case at hand be convicted under Section 302 read with Section 149of the IPC.
28. In Chikkarange Gowda & Ors. Vs. State of Mysore [AIR 1956 SC 731] this Court was dealing with a case where the common object of the unlawful assembly simply was to chastise the deceased. The deceased was, however, killed by a fatal injury caused by certain member of the unlawful assembly. The court below convicted the other member of the unlawful assembly under Section 302 read with Section 149 IPC. Reversing the conviction, this Court held:
"9. It is quite clear to us that on the finding of the High Court with regard to the common object of the unlawful assembly, the conviction of the appellants for an offence under Section 302 read with Section 149 Indian Penal Code cannot be sustained. The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly; the second essential part is that the offence must be committed in prosecution of the common object of the unlawful assembly, or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object.
In the case before us, the learned Judges of the High Court held that the common object of the unlawful assembly was merely to administer a chastisement to Putte Gowda. The learned Judges of the High Court did not hold that though the common object was to chastise Putte Gowda, the members of the unlawful assembly knew that Putte Gowda was likely to be killed in prosecution of that common object. That being the position, the conviction under Section 302 read with Section 149 Indian Penal Code was not justified in law."
29. In Gajanand & Ors. Vs. State of Uttar Pradesh [AIR 1954 SC 695], this Court approved the following passage from the decision of the Patna High Court in Ram Charan Rai Vs. Emperor [AIR 1946 Pat 242]:
"Under Section 149 the liability of the other members for the offence committed during the continuance of the occurrence rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. Such knowledge may reasonably be collected from the nature of the assembly, arms or behavior, at or before the scene of action. If such knowledge may not reasonably be attributed to the other members of the assembly then their liability for the offence committed during the occurrence does not arise".
30. This Court then reiterated the legal position as under:
"9........The question is whether such knowledge can be attributed to the appellants who were themselves not armed with sharp edged weapons. The evidence on this point is completely lacking. The appellants had only lathis which may possibly account for Injuries 2 and 3 on Sukkhu's left arm and left hand but they cannot be held liable for murder by invoking the aid of Section 149 IPC. According to the evidence only two persons were armed with deadly weapons. Both of them were acquitted and Sosa, who is alleged to have had a spear, is absconding. We are not prepared therefore to ascribe any knowledge of the existence of deadly weapons to the appellants, much less that they would be used in order to cause death."
31. In Mizaji and Anr. Vs. State of U.P. [AIR 1959 SC 572] this Court was dealing with a case where five persons armed with lethal weapons had gone with the common object of getting forcible possession of the land which was in the cultivating possession of the deceased. Facing resistance from the person in possession, one of the members of the assembly at the exhortation of the other fired and killed the deceased. This Court held that the conduct of the members of the unlawful assembly was such as showed that they were determined to take forcible possession at any cost. Section 149 of IPC was, therefore, attracted and the conviction of the members of the assembly for murder legally justified.
32. This Court analysed Section 149 in the following words:
"6. This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts. The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149. Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all."
33. In Shambhu Nath Singh and Ors. Vs. State of Bihar [AIR 1960 SC 725], this Court held that members of an unlawful assembly may have a community of object upto a certain point beyond which they may differ in their objects and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command but also according to the extent to which he shares the community of object.
As a consequence, the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly. Decisions of this Court Gangadhar - Behera and Others Vs. State of Orissa [2002 (8) SCC 381] and Bishna Alias Bhiswadeb Mahato and Others Vs. State of West Bengal [2005 (12) SCC 657] similarly explain and reiterate the legal position on the subject.
43. Common object has to be ascertained from the member-ship, weapon used and the nature of injuries as well as other circumstances as held by the Apex Court in the case of Haramant Laxmappa Kukkadi Vs. State of Karnataka, 1994(1) SCC 736.
44. In the present case this court finds that out of three ingredients discussed above, third ingredient for constituting offence under Section 149 I.P.C is not satisfied in this case. The allegations clearly prove that dispute took place all of a sudden regarding parking of car and from the allegations on record it does not appears that all the accused persons had common object of causing the murder of the deceased and attempt to murder of his brother and had formed unlawful assembly knowing that such offence is likely to be committed. The dispute took place all of a sudden wherein two co-accused were involved. The injuries do not prove that any indiscriminate firing was made by all the accused persons. The injury caused to the injured was on his leg and will not constitute offence under Section 307 I.P.C. In the first information report no weapon used in the alleged offence was assigned to the applicant but allegation of firing was made against to him along with co-accused. As per judgements of Apex Court in the case of Ramchandran (supra) and Bhanwar Singh (Supra), nature of arm used is one of the necessary ingredients for considering the common object of the accused who had formed unlawful assembly.
45. Keeping the above facts, this court at the time of consideration of the bail application of an accused implicated for committing offence under Section 149 I.P.C. must place reliance on the material collected by the investigating officer. The court has to consider the case on its merit and there cannot be any straight jacket formula for the same, as stated earlier formation of unlawful assembly having its common object and knowledge of any object are matters of fact and the court should apply its independent mind keeping in view the position of the criminal investigation and the rule of prudence and probability keeping in view the totality of facts and circumstances of the case.
46. This court has come across number of cases of bail where ingredients for constituting offence under Section 149 I.P.C were clearly made but accused was not implicated under Section 149 I.P.C. Conversely court has also come across cases where the allegation in the first information report and the statements of the witnesses clearly did not proved the presence of the necessary ingredients for constituting offence under Section 149 I.P.C but accused was implicated for the same. Court should be cautious of relying upon the Section 149 I.P.C while considering bail application. The investigating officer apply mostly section 149 I.P.C as it suits them.
47. In view of the above factual position emerging from the record the applicant cannot be said to be rightly implicated under Section 149 I.P.C for the alleged offences. Two fire arm injuries were found on the body of the deceased, Once on abdomen and on on thigh of the deceased. The accused named are above five in numbers, therefore, only because they were more in numbers the offence alleged cannot be considered to be made out against them at this stage. It appears to be case of sudden provocation and all the members of the alleged unlawful assembly cannot be held liable for the offence committed by any one or two accused named in the first information report. More so because in this case also the investigating officer of police has not recorded the statement of a single witness from the accused side. All the statements recorded by the investigating officer are of the informant side for justifying the implication of all the accused. The version of accused side, as usual, is missing. Therefore, on the basis of one-sided and flawed investigation the implication of the applicant under Section 149 I.P.C cannot be justified. It could have been done after considering the versions of both sides by the investigating officer, which he was required to do as per law, but he has again miserably failed in performance of his legal duty. The three ingredients for constituting the offence under Section 149 I.P.C discussed in paragraph 12 of this judgement could have been ascertained only after considering the evidence of both sides by the investigating officer and not on the basis of one sided evidence collected by way of illegal investigation. In short, after considering the evidence lead before the trial court only definite opinion can be formed regarding commission of offence under Section 149 I.P.C. At the time of consideration of bail application of an accused, it would be unsafe to deny bail to an accused, implicated for committing offence under Section 149 I.P.C considering the state of investigation of crime by investigating agency in the state.
Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid 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 that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year from the date of production of certified copy of this order.
The Registrar (Compliance) of this Court is directed to communicate this order to the court concerned forthwith.
Order Date :- 29.3.2023 Ruchi Agrahari