Allahabad High Court
Nishant @ Kallu vs State Of U.P. on 1 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29646 of 2022 Applicant :- Nishant @ Kallu Opposite Party :- State of U.P. Counsel for Applicant :- Saurabh Chaturvedi,Sr. Advocate Counsel for Opposite Party :- G.A.,Dheeraj Kumar Singh Hon'ble Rajeev Misra,J.
Heard Mr. I.K. Chaturvedi, learned Senior counsel assisted by Mr. Saurabh Chaturvedi, the learned counsel for applicant, the learned A.G.A. for State and Mr. Dheeraj Kumar Singh, the learned counsel representing first informant.
This application for bail has been filed by applicant Nishant @ Kallu seeking his enlargement on bail in Case Crime No. 855 of 2021, under Sections 302, 120-B IPC, P.S. Modinagar, District Ghaziabad, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident, which is alleged to have occurred on 4.9.2021, a prompt F.I.R. dated 4.9.2021 was lodged by first informant Smt. Poonam and was registered as Case Crime No. 855 of 2021, under Sections 302, 120-B IPC, P.S. Modinagar, District Ghaziabad. In the aforesaid F.I.R., four persons namely Rajveer alias Pappu, Sunil, Kallu alias Nishant (applicant herein)and Jay Kumar Malik have been nominated as named accused.
Gravamen of the allegations made in the F.I.R. is to the effect that named accused fired numerous gun shot on the person of husband of first informant, on account of which he died on the spot.
Subsequent to lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. The post mortem of the body of the deceased was conducted on 5.9.2021. Autopsy Surgen found following ante mortem injuries on the body of deceased:-
(1) Gun shot wound of entry 0.5 cm x 0.5 cm on left side head just above left ear, hair, singing blackening and tattooing present, inverted.
(2) Gun shot wound of exit 1 cm x 1 cm on right side of head 3 cm above right ear margins everted injury no. 1 correlates to injury no. 2.
(3) Gun shot wound of entry 0.5 cm x 0.5 cm on left side of face, 2 cm below left ear blackening and tattooing present margins inverted.
(4) Gun shot wound of exit 01 cm x 01 cm on right side of face 03 cm away from right ear. Margin everted injury no. 3 correct position injury no. 4.
(5) Gun shot wound of entry 0.5 cm x 0.5 cm on left side of back 2 cm below left scapular (lower back) blackening and tattooing present margin inverted.
(6) Gun shot wound of exit size 1 cm x 1 cm on left axilla region, margins everted. Injury no. 5 correlate to injury no. 6.
(7) Gun shot wound of entry 0.5 cm x 0.5 cm on back 06 cm below injury no. 5, blackening and tattooing present, margins everted.
(8) Gun shot wound of exit size 1 cm x 1 cm on 2 cm below left clavicle margin overted injury no. 7 loss part to injury no. 8.
(9) Gun shot wound of entry 0.5 cm x 0.5 cm on left side of back 05 cm below injury no. 7, blackening and tattooing present margin inverted.
(10) Gun shot wound of exit size 1 cm x 1 cm on left side of chest 07 cm away at 07' o clock position from left nipple injury no. 9 correlate to injury no. 10.
(11) Gun shot wound of entry size 0.5 cm x 0.5 cm x 0.5 cm above left hip joint bleeding and tattooing present, margin inverted.
(12) Gun shot wound of exit size 01 cm x 01 cm on left side of chest 02 cm below injury no. 10 margins everted correlate to injury no. 12.
(13) Gun shot wound of entry size 0.5 x 0.5 cm on ........... above hip region bleeding and tattooing, margins inverted.
(14) Gun shot would exit size 1 c m x 1 cm on right hip on lower abdomen, as on above right hip margin inverted.
(15) Gun shot wound of entry size 0.5 x 0.5 cm on right side of chest, 03 cm below right clavicle margins inverted, bleeding and tattooing present.
(16) Gun shot wound of exit size 01 x 01 cm on side of chest, 06 cm above at 11' clock position on right nipple margin everted injury no. 15 correlate to injury no. 16.
(17) lacerated wound 3 x 2 cm on right fore arm 10 ck below right elbow.
(18) Lacerated wound 3 cm x 3 cm on left thigh, 22 cm above left knee.
In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante mortem gun shot injuries. During course of investigation, Investigating Officer gathered that complicity of other persons namely Satish, Boby and Kapil alias Gandhi is also established in the crime in question. He ultimately submitted the charge sheet dated 3.12.2021, whereby one of the named accused i.e. Nishant alias Kallu and three not named accused namely Satish, Boby and Kapil alias Gandhi have been charge sheeted. The other three named accused have been exculpated.
Mr. I.K. Chaturvedi, the learned Senior counsel submits that three of the other charge sheeted accused namely Satish, Boby and Kapil alias Gandhi have already been enlarged on bail by this Court by different orders. For ready reference, same are reproduced herein under:-
Bail Order of Satish "Heard Shri P.K. Singh, brief holder of Shri Sunil Kumar Dubey appearing for the applicant, learned A.G.A. for the State and perused the entire record.
The present bail application has been filed by the applicant in Case Crime No. 855 of 2021, under Sections 302, 120 IPC, Police Station - Modi Nagar, District - Ghaziabad with the prayer to enlarge the applicant on bail.
The FIR of this incident was lodged by complainant Smt. Poonam against four named accused persons - Rajveer @ Pappu, Sunil, Kallu @ Nishant and Jaykumar Malik. It was alleged in the FIR that having said to go to tower her husband Manoj @ Guddu went from the house on 04.09.2021 at about 5 o' clock along with his younger brother Jitendra on bike to have talk with some persons present at the tower. After sometime, complainant's dewar (brother-in-law) returned home in a frightened state and told that hardly had they reached at the tower when Rajveer @ Pappu, Sunil, Kallu @ Nishant came on bike having pistols and Katte in their hands and started firing to kill Manoj and near the tower those three persons committed murder of the complainant's husband and cried in a loud voice that they took the revenge of their brother Bablu. The whole incident being committed there was witnessed by complainant's dewar Jitendra.
The contention as raised at the Bar by learned counsel for the applicant is that applicant-accused has been falsely implicated in the present case. It is argued by the learned counsel for applicant that the name of the present applicant has surfaced in this crime during investigation on the basis of suspicion due to the fact that deceased Manoj (complainant's husband) had raped and murdered the sister of present applicant. It is also submitted that initially the brother-in-law of the complainant was said to have witnessed the incident. But later on, two other witnesses have been examined in this matter. Out of the two witnesses one Devendra had said that on 04.09.2021 at the call of deceased Manoj he went to the tower where Arun son of Pooran Singh also came on the phone call of deceased. Then, four boys namely Kallu son of Shaukeen, Babee son of Ramphal, Satish (applicant) and one outsider boy came on two motorcycles and at once they made fires at Manoj @ Guddu. The same facts were reiterated by other independent witness Arun Kumar. Learned counsel for applicant submits that the evidence against the present accused, which was collected by the police in form of independent evidence on the basis of the statements of Devendra and Arun, both these witnesses were examined after about three months of the incident, which is too late and it casts shadow of doubt on their evidence and is not worth-believing. It is also argued that the earlier named accused except Kallu were exonerated by the police and the present applicant had been falsely nominated along with other co-accused. It is also submitted that nothing incriminating was recovered from the possession of the present applicant which could show involvement of the applicant in the alleged offence. The applicant has been implicated due to village-party and rivalry. Lastly, it is argued that the applicant is in jail since 09.09.2021 and that in case applicant is enlarged on bail, he will not misuse the liberty of bail.
Learned A.G.A. has opposed the prayer for bail. But he could not controvert the submissions made by the learned counsel for applicant.
Keeping in view the submission of learned counsel for the parties, considering the statements of two witnesses namely Arun and Devendra which were recorded too late after about three months of the incident, considering that the complainant is not eye witness of the alleged incident, considering that the fact that initially the FIR was lodged against named accused persons - Rajveer @ Pappur, Sunil, Kallu @ Nishant and Jay Kumar Malik and during investigation their complicity except Kallu was found false and name of the present accused along with co-accused surfaced in this matter too late, considering the period of detention of the applicant and considering all other attending facts and circumstances of the case, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out.
The prayer for bail is granted. The application is allowed.
Let applicant Satish involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties to the satisfaction of court concerned subject to the following conditions:-
(1). The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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;
(2). 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;
(3). In case, the applicant misuses the liberty of bail 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 may initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(4). 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law."
Bail Order of Boby "Heard learned counsel for the applicant and Sri Pradeep Kumar Bhardwaj, learned counsel for the complainant and Sri Sanjay Singh learned A.G.A.-I appearing for the State.
It has been contended by the learned counsel for the applicant that the applicant has been falsely implicated in the present case due to ulterior motive. It is next contended that the co-accused namely Satish has already been granted bail by another Bench of this Court vide order dated 31.3.2022 passed in Criminal Misc. Bail Application Nos.11075 of 2022, a copy of said order has been produced by learned counsel for the applicant which is taken on record. The applicant claims parity. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since 11.9.2021. It has been pointed out that the applicant has criminal history which has been duly explained in paragraph no.30 of the affidavit accompanying the bail application.
Learned counsel for the complainant as well as learned A.G.A. have opposed the prayer for bail.
Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.
Let the applicant Boby involved in Case Crime No.855 of 2021, under Sections 302, 120-B I.P.C., Police Station Modi Nagar, District Ghaziabad be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions.
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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, the trial court will be at liberty to cancel the bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case."
Bail Order of Kapil alias Gandhi "Heard Shri Sunil Kumar Pandey, learned counsel for the applicant, learned A.G.A. and also perused the record.
By means of the present bail application the applicant, who is facing prosecution in connection with Case Crime No.855 of 2021, under sections 302, 120-B IPC, Police Station Modi Nagar, District Ghaziabad is seeking his enlargement on bail during trial. The applicant is in jail since 9.9.2021.
Contention raised by learned counsel for the applicant is that the applicant is not named in the F.I.R.. His name is figured up in the statement of co-accused Nishant @ Kallu after four days of the incident.?
Contention raised by the learned counsel for the applicant is that the co-accused Satish and Boby have already been granted bail by another co-ordinate Bench of this Court vide order dated 31.3.2022 and 18.4.22 passed in Criminal Misc. Bail Application Nos.11075 of 2022, 4320 of 2022. The case of the applicant stands on identical footing to that of co-accused Satish and Boby, hence the applicant is also entitled for bail on the ground of parity. Applicant has no criminal history to his credit. Lastly it is submitted that there is no chance of the applicant of fleeing away from the prosecution evidence. In case, applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.
Learned A.G.A. has opposed the prayer for bail but could not dispute the above facts.
Keeping in view the nature of the offence, evidence on record regarding complicity of the accused and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Kapil @ Gandhi who is involved in aforementioned 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 subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.
(ii) 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 IPC.
(iii) 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., MAY BE ISSUED AND IF 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 IPC.
(iv) THE APPLICANT 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 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.
(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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above"
It is then contended by the learned Senior counsel that recovery of country made weapons had been made from all the four charge sheeted accused as is evident from Annexures 9 and 10 to the affidavit filed in support of bail application. According to learned Senior counsel as per the post mortem report of the deceased six wounds of entry were found to be present on the bod of deceased.
On the aforesaid premise, the learned Senior counsel for applicant submits that case of the present applicant is similar and identical to that of the other three charge sheeted accused i.e. Satish, Boby and Kapil alias Gandhi. There is no such distinguishing feature on basis of which case of present applicant can be distinguished from that of above mentioned charge sheeted accused. It is thus urged that applicant is also liable to be enlarged on bail on the ground of parity.
According to the learned Senior counsel prosecution case as unfolded in the F.I.R. is itself doubtful. In the submission of learned Senior counsel though F.I.R. is not encyclopedia of prosecution case, but it must disclose the basic prosecution case. The silence on the part of first informant in not filing any protest petition against the police report submitted under Section 173 (3) Cr. P. C. , whereby three of the named accused were exculpated coupled with the fact that during the pendency of trial, even when P.W. 1 Smt. Poonam and P.W. 2 Jitendra had been examined, no application under Section 319 Cr. P. C. was filed for summoning three of the named accused who have been exculpated. It is thus urged by learned Senior counsel that prima facie simply on the basis of alleged recovery in respect of which there is no independent witness, the complicity of applicant cannot be said to be established inthe crime in question up to this stage. Applicant is in jail since 9.9.2021. As such, he has undergone almost 15 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. The charge sheet having already been submitted evidence sought to be relied upon by prosecution against the applicant stands crystallized. As such, custodial arrest of applicant alone is not necessary during the course of trial.
Per contra, the learned A.G.A. and Mr. Dheeraj Kumar Singh, the learned counsel for first informant have opposed present application for bail. Learned counsel for first informant submits that irrespective of the facts noted above prosecution case quo present applicant has been consistent. As such, no benefit can be derived by the applicant on the basis of aforesaid. However, the learned counsel for first informant could not dislodge the factual submissions urged by learned Senior counsel regarding similarity/parity in the case of the present applicant with that of co-accused, who have been enlarged on bail.
Having heard the learned counsel for applicant, the learned A.G.A. for the state, Mr. Dheeraj Kumar Singh, the learned counsel for first informant, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusations made and coupled with the fact that there is no distinguishing feature to distinguish the case of present applicant from that of charge sheeted accused namely Satish, Boby and Kapil alias Gandhi, who have been enlarged on bail, but without expressing any opinion on merits of the case, the applicant is entitled to be enlarged on bail.
Accordingly, bail application is allowed.
Let the applicant Nishant @ Kallu involved in aforesaid case crime number, be released on bail on his/her/their furnishing a personal bond with 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 shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(ii) 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 I.P.C..
(iii) 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., may be issued and if 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 I.P.C.
(iv) The applicant 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 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.
(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.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 1.11.2022 HSM