Allahabad High Court
Naresh vs State Of U.P. on 30 January, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On-27.01.2023 Delivered On-30.01.2023 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56640 of 2022 Applicant :- Naresh Opposite Party :- State of U.P. Counsel for Applicant :- Hemendra Pratap Singh,Anshu Singh Counsel for Opposite Party :- G.A.,Kunwar Ajay Singh,Kunwar Ajai Singh Hon'ble Siddharth,J.
Heard Shri Hamendra Pratap Singh, learned counsel for the applicant; Shri Kunwar Ajay Singh, learned counsel for informant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Naresh with a prayer to release him on bail in Case Crime No. 56 of 2022, under Sections 147, 148, 149, 452, 323, 504, 324, 336, 427, 506, 307 and 302 IPC, Police Station-Gonda, District- Aligarh, during pendency of trial.
There is allegation against the 10 persons in the FIR, including the applicant, that they came armed with lathi-danda, pharsa and sariya to the house of the informant and put the motorcycle standing outside his house on fire. On protest by the informant side, they started beating by lathi-danda, bricks and stones. Indrajeet son of Mukhteyar Singh, suffered serious injury on head. After hearing the noise Harendra Singh and Saurabh Singh son of Rampal Singh, Jitendra Singh, son of Pooran Singh, came to save them and they also suffered injuries on their hands and legs. Kamlesh Devi, wife of Rampal Singh, also suffered injuries on the hand. The accused person entered into the house and after committing the offence of misbehaviour inside the house they threw stones and bricks in the house. Police was dialed on No. 112 and number of villagers gathered around and then the accused persons left the place of incident after extending threats to their lives.
Learned counsel for the applicant has submitted that the incident alleged never took place. He has submitted that on the date of incident i.e., 18.03.2022 it was festival of holi and informant along with other family members took liquor and misbehaved with co-accused, Verru and his brother-in-law. On account of some verbal altercation free fight took place between the parties wherein Indrajeet, sustained injuries on his head but who caused the same is not clear. Injured Saurabh, suffered three simple injuries like the injured Harendra. Subsequently, Indrajeet died during the treatment on 21.03.2022. In the inquest report only one injury was found on his person but in post-mortem report three stitched wounds over right sides of forehead and one abrasion over right side back was found. Cause of death was found to be coma as a result ante-mortem injury. In the statement of witnesses recorded by the Investigating Officer, no specific role has been assigned to any of the accused. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 15.09.2022. There is no specific allegation against him. He is student of B.Sc.-1st year and not incriminating material has been recovered from the applicant.
Learned A.G.A. and learned counsel for informant have vehemently opposed the prayer for bail of the applicant and submitted that the applicant has been implicated in this case on account of his being member of the illegal assembly formed by all the accused persons with common object or committing the alleged offence. They have relied upon the judgment of this Court, in the case of Man Singh Vs. State of U.P. passed in bail application No. 6391 of 2022.
They have further relied upon the judgment of the Apex Court in the case of Pancham Mishra Vs. Digambar Mishra and others reported in 2005 ( 3 SCC 143) and have submitted that the High court should not grant bail to an accused pending appeal by non-speaking order without application of mind to the gravity of crime, apprehension of tampering with evidence and threats to life of the complainant. They submitted that the applicant is not entitled to be enlarged on bail,k eeping in view, the seriousness of allegations made against him.
This court after hearing the rival submissions and going through the record comes to the conclusion that in the present case, there is allegation against 10 persons that they came armed with lathi-danda, pharsa and sariya and first of all put the splendor motorcycle of the informant on fire and on protest from the informant side, they caused injuries by lathi-danda, pharsa and sariya. The conduct of the applicant and other co-accused shows that they did not caused any injuries initially by any arm to anyone and it was only after the motorcycle of informant was put on fire, they attacked the informant side. The prosecution story is improbable. People who are armed with weapons and have formed illegal assembly for committing an offence/offences will not damage a motor-cycle. They will cause injuries to the persons in furtherance of their common object.
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.
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.
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.
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 :-
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."
14. 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 :-
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.
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:
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."
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".
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."
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.
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."
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.
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.
In the present case as per the allegations in the FIR, the condition number 2 is only satisfied but the condition nos. 1 and 3 required for constituting the offence under section 149 IPC is not made out since the formation of unlawful assembly as discussed hereinabove has not been proved nor there is evidence that all the accused persons shared a common object of putting the deceased to death.
The judgement in the case of Man Singh (supra) and Pancham Mishra (supra) have no application to the present case.
Therefore, it would be unsafe at this statge to deny bail to the applicant on the basis of his general implication in the alleged offence.
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 the 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 trial; 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.
Order Date- 30.01.2023 Abhishek