Allahabad High Court
Pawan vs State Of U.P. on 23 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:170012 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33274 of 2023 Applicant :- Pawan Opposite Party :- State of U.P. Counsel for Applicant :- Mandeep Singh,Sikandar Khan Counsel for Opposite Party :- G.A.,Uttar Kumar Goswami Hon'ble Rajeev Misra,J.
1. Heard Mr. Sikandar Khan, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This is a repeat application for bail filed by applicant-Pawan seeking his enlargement on bail in Case Crime No. 102 of 2022, under sections 306, 506 IPC, Police Station- Ahar, District Bulandshahr during the pendency of trial.
4. First bail application of applicant was rejected by this Court by a detailed order dated 15.12.2022 passed in Criminal Misc. Bail Application No. 57262 of 2022 (Pawan Vs. State of U.P.) For ready reference, same is reproduced herein under:
"1. Heard Mr. Deepak Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Pawan seeking his enlargement on bail in Case Crime No. 102 of 2022 under Sections 306, 506 I.P.C., Police Station- Ahar, District-Bulandshahar, during the pendency of trial.
4 Record shows that in respect of an incident, which is alleged to have occurred on 20.08.2022, a delayed F.I.R. dated 21.08.2022 was lodged by first informant Dharmveer (father of deceased), which was registered as Case Crime No. 102 of 2022 under Sections 306, 506 I.P.C., Police Station- Ahar, District-Bulandshahar. In the aforesaid F.I.R., six persons namely Bholoo Pradhan, Rajkumar, Pawan (applicant herein), Gaurav, Kanchhid and Durgesh have has been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that? on 20.08.2022 at around 9 AM, three persons namely Bholoo, Rajkumar, Pawan (applicant herein) and Gaurav came to the house of first informant and took away the son of first informant on the statement that son of first informant is needed for a compromise which is to be held in between the parties for settlement in respect of an earlier incident dated 13.08.2022. However, son of first informant did not return. Consequently, hectic search was made regarding whereabouts of son of first informant but son of first informant was not traceable. Ultimately, dead body of the son of first informant was found in the Mango Grove of one Kanti Prasad Lodhi.
6. Learned A.G.A. submits that there is evidence of last seen against applicant in the prosecution story as unfolded in the F.I.R. As a result burden shifts upon the applicant to prove his innocent by dislodging the said burden. However, no foundation has been laid in the affidavit filed in support of present application regarding above nor the same has been rebutted by learned counsel for applicant. On the aforesaid premise, learned A.G.A. submits that applicant does not deserve any indulgence by this Court.
7. When confronted with above, learned counsel for applicant invited the attention of Court to the document occurring at page 64 of the paper book and on the basis thereof, a plea of alibi is sought to be raised. However, a plea of alibi is sought to trial evidence and same cannot be taken as ifso-facto correct, to conclude the applicant is innocent.
8. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that there is evidence of last seen against applicant, which has not been dislodged by learned counsel for applicant but without expressing any opinion on merits of the case, this Court does not find any good ground to enlarge the applicant on bail.
9. Consequently, present application fails and is therefore liable to rejected.
10. Accordingly, present application for bail is rejected.
Order Date :- 15.12.2022 "
5. Learned counsel for applicant contends that subsequent to the order dated 15.12.2022 named/charge-sheeted co-accused Bholu Pradhan has been enlarged on bail by this Court vide order dated 14.06.2023 passed in Criminal Misc. Bail Application No. 23222 of 2023 (Bholu Pradhan Vs. State of U.P.). For ready reference order dated 14.06.2023 is reproduced herein-under:
"Heard Mr. Anil Kumar, learned counsel for the applicant, Mr. Uttar Kumar Goswami, learned counsel for the first informant, learned A.G.A. for the State and perused the record.
By means of this application, the applicant namely, Bholu Pradhan who is involved in Case Crime No.102 of 2022, under Sections 306, 506 I.P.C., Police Station- Ahar, District- Bulandshahar is seeking enlargement on bail during the trial. The applicant is in jail since 21.02.2023.
Submission advanced by learned counsel for the applicant is that present F.I.R. was lodged on 21.08.2022 for the offence which is said to have been taken place on 21.08.2022 under Sections 147, 302, 506 I.P.C. by one Dharmveer against six named accused persons including the present applicant. From the F.I.R., it is clear that the prime accused Phuspendra and Shivam have committed the offence of rape on 13.08.2022 and the Phuspendra is languishing in jail. However, another co-accused Shivam was remain an absconder. In the same F.I.R., the name of the applicant has figured up who used his good offices and taken the informant and thereafter his whereabouts was not unknown. The basic thrust of the argument is that there is a material change in the investigation whereby the textural change in the offence of the case was converted from 302 I.P.C. to 306 I.P.C. i.e. abetment to commit suicide. Not coming to the Section 306 I.P.C., the prosecution has to bring around the facts of the case under Section 107 I.P.C. which reads thus:-
"107. Abetment of a thing.?A person abets the doing of a thing, who?
(First) ? Instigates any person to do that thing; or (Secondly) ?Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) ? Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.?A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.?Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
Learned counsel for the further submitted that applicant is the present Pradhan who got no mens-rea to commit the offence in question. The main accused is Phuspendra and Shivam who have committed the offence of rape. The applicant has unnecessarily and falsely implicated in the present case.
Per contra, learned counsel for the informant as well as learned A.G.A. have opposed the prayer for bail by making a number of serious objections showing the involvement of the applicant in the present offence. They further submit that applicant has a criminal history of five cases to his credit. It is further contended that bail application of one of the co-accused namely, Pawan was rejected by co-ordinate Bench of this Court passed in vide its order dated 15.12.2022 and therefore, the case of the applicant is also similar footing qua? the co-accused Pawan.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and coupled with the fact that there is no parity in the dismissal; every case has to be tested on his own qualities; Pradhan by the remotest way cannot be said as abater for the offence of suicide and there is no material on record to establish the case for the offence under Section 306 I.P.C. against the applicant but without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail.
Let the applicant- Bholu Pradhan, involved in Case Crime No.102 of 2022, under Sections 306, 506 I.P.C., Police Station- Ahar, District- Bulandshahar be released on bail on 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/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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.
(ii) THE APPLICANT/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT/APPLICANTS SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON 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/APPLICANTS IS/ARE 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 HIS/HER/THEIR IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT/APPLICANTS.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that any observation made above shall be for a limited purposes i.e. deciding the bail. It is expected, that the Court shall apply his own robust judicial mind during trial. Besides this the Court is expected to gear up the matter and concluded the same as early as possible.
Order Date :- 14.6.2023 "
6. It is then contended that another named/charge-sheeted co-accused Kanchid has been enlarged on bail by this Court vide order dated 01.02.2023 passed in Criminal Misc. Bail Application No. 55656 of 2022 (Kanchid Vs. State of U.P.), which is reproduced herein-under:
"Heard Sri Krishna Kant Dubey and Sri Raghuvansh Misra, learned counsels for the applicant; Sri Shiv Kumar Singh, learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Kanchid, with a prayer to release him on bail in Case Crime No. 102 of 2022, under Sections 306, 506 IPC, Police Station Ahar, District- Bulandsahar, during pendency of trial.
There is allegation in the FIR against six persons including the applicant that on 13.8.2022 an incident of rape against daughter of the informant aged about 15 years took place, which was caused by Pushpendra, s/o Gulab and Shivam, s/o Vinod. Pushpendra is in jail and Shivam is absconding. Today, i.e., 20.8.2022 at about 9:00 a.m. co-accused, Bholu Pradhan, Raj Kumar, Pawan and Gaurav came to the house of the informant and took his son, Satendra, stating that they want to talk about the compromise in the case of Priti and his son went with them. Thereafter his son did not returned and his dead body was found in the grove of mango of Kanti Prasad Lodhi. It was alleged that the applicant and co-accused, Durgesh, are also involved in the incident.
Learned counsel for the applicant has submitted that in the FIR there is no allegation against the applicant that he took the son of the informant from his house. The witnesses have also not named the applicant. There is no recovery of any incriminating material from the applicant. The doctor has found that the death of the son of the informant was the result of suicide. Charge-sheet has not been submitted against him. The earlier implication under Section 302, 147 and 506 IPC was controverted into Section 306 IPC. The ingredients for constituting offence under Section 306 IPC are not made out against the applicant. The applicant is suffering from paralysis and cannot walk. He has further pointed that the bail application of co-accused, Pawan, has already been rejected by this Court vide Criminal Misc. Bail Application No.57262 of 2022. Learned counsel for the applicant has submitted that the role of the applicant is different as compared to co-accused, Pawan, whose bail application has been rejected by this Court. In the FIR itself it has been stated that the deceased was called from his house by the four co-accused persons, which included, Pawan. The applicant was not assigned the role of taking the deceased alongwith him. He has further submitted that only allegation against co-accused, Durgesh and the applicant is that they had extended threat to the son of the informant two days ago and they are also involved in his murder. The learned counsel for the applicant submits that the allegation of murder has not been found to be correct. It is a case of suicide. Therefore the allegation against the applicant is ill-founded. He has no concern with the case of rape of Priti regarding which compromise was to be taken place and on its pretext, son of the informant was taken for compromise. He has submitted that the applicant has been falsely implicated in this case. He is in jail since 12.10.2022 and has criminal history of three cases explained in supplementary affidavit. One case is under the Electricity Act and two cases are of theft.
Learned counsel for the informant and learned AGA have vehemently opposed the bail application of the applicant. Learned counsel for the informant has submitted that allegations against the applicant are quite serious and the report of the doctor stating that the deceased committed suicide by way of hanging and was not strangulated is not correct. It has been submitted that son of the informant was done to death by the applicant and other co-accused persons. The applicant has criminal antecedents. Hence he is not entitled to be enlarged on bail.
After hearing the rival contentions, this Court finds that neither the applicant was involved in the rape case of Priti nor he is alleged to have taken the deceased with him. There is allegation against him that he had threatened the son of the informant two days prior to the alleged incident. Deceased committed suicide and was not found to be murdered. There is no allegation against the applicant of abetment of suicide as Section 306 and 107 IPC.
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.
Order Date :- 01.02.2023 "
7. It is also contended that another named/charge-sheeted co-accused Rajkumar has been enlarged on bail by this Court vide order dated 19.07.2023 passed in Criminal Misc. Bail Application No. 57646. of 2022 (Rajkumar Vs. State of U.P.). For ready reference order dated 19.07.2023 is reproduced herein-under:
" List has been revised.
Heard Sri S.M.Faraz I. Kazmi and Sri Sikandar Khan, learned counsel for the applicant 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, Rajkumar, with a prayer to release him on bail in Case Crime No.102 of 2022, under Sections 306, 506 I.P.C., Police Station- Ahar, District- Bulandshahar , during pendency of trial.
Learned counsel for the applicant has submitted that there was parity role of the applicant and three co-accused, namely, Bholu Pradhan, Gaurav and Pawan. The name of co-accused, Gaurav, was exonerated by the Investigating Officer. The bail application of co-accused, Pawan, was rejected by co-ordinate Bench of this Court on 15.12.2022 in Criminal Misc. Bail Application No.57262 of 2022. Subsequently bail application of co-accused, Kanchid, was allowed by this Court on 01.02.2023 in Criminal Misc. Bail Application No.55656 of 2022 taking note of the fact that the bail of co-accused, Pawan, has been rejected.
Learned counsel for the applicant has further submitted that the applicant has parity of role of co-accused, Bholu Pradhan, who has been enlarged on bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 23222 of 2023. The role of the applicant is different from the role of co-accused, Kanchid. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 6.9.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
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.
Order Date :- 19.7.2023 "
8. On the above premise, the learned counsel for applicant submits that since similarly situate and circumstance named/charge sheeted co-accused have already been enlarged on bail, therefore, applicant is also liable to be enlarged on bail.
9. Per contra, the learned A.G.A. for State has opposed the repeat application for bail. He has invited the attention of the court to the post mortem report of the deceased wherein Autopsy Surgeon has clearly opined that cause of death of deceased is strangulation. On the above premise he contends that the recital contained in paragraph three of bail order of co-accused Bholu Pradhan is contrary to the record. Similarly, he submits that bail application of named and charge sheeted accused Kanchid was allowed primarily on the ground that in the opinion of the Doctor death of deceased was suicidal and on that ground co accused Kanchid has been granted the benefit of parity. On the cumulative strength of above, the learned A.G.A. contends that no benefit can be claimed by applicant from bail orders aforementioned bailed out co-accused. Therefore, present repeat application for bail is liable to be rejected.
10. When confronted with above, the learned counsel for applicant could not overcome the same.
11. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, accusations made as well as complicity of applicant coupled with the fact the submissions urged by the learned A.G.A. could not be dislodged by the learned counsel for applicant with reference to the record, at this stage but without making any comments on the merits of the case this Court finds that no new or good ground has been made out to enlarge the applicant on bail.
12. As a result, present repeat application for bail fails and is liable to be rejected.
13. It is accordingly rejected.
Order Date :- 23.8.2023 YK