Allahabad High Court
Bhole Shankar vs State Of U.P. on 21 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:183702 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39476 of 2023 Applicant :- Bhole Shankar Opposite Party :- State of U.P. Counsel for Applicant :- Jitendra Pal Singh Jadaun,Seema Singh Jadaun Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. J.P.S. Jadaun, 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-Bhole Shankar, seeking his enlargement on bail in Case Crime No. 29 of 2023, under Sections 302, 504, 506 IPC, Police Station-Vijaygarh, District-Aligarh during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 20.03.2023, a prompt FIR dated 20.03.2023 was lodged by first informant-Kali Charan (brother of the deceased) and was registered as Case Crime No. 29 of 2023, under Sections 302, 504, 506 IPC, Police Station-Vijaygarh, District-Aligarh. In the aforesaid FIR, 3 persons namely - (1) Bhoori Singh, (2) Bhole Shankar (applicant herein) and (3) Nahana have been nominated as named accused.
5. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused inasmuch, the charge sheet has been submitted against applicant and other 2 co-accused on 02.05.2023 yet the applicant is liable to be enlarged on bail. The other 2 named/charge sheet co-accused have already been enlarged on bail by this Court. The details of the same are as under:-
1. Criminal Misc. Bail Application No. 18411 of 2023 (Bhuri Singh @ Bhura Vs. State of U.P.)-
"1. Heard Sri J.P.S. Jadaun, Advocate holding brief of Ms. Seema Singh Jadaun, learned counsel for the applicant and learned A.G.A for the State.
2. There is allegation in the FIR regarding commission of offence of murder of one person apart from committing the offence of threatening.
3. Counsel for the applicant submits that prosecution story as well as allegations in FIR are improbable. There is allegation against the applicant and two co-accused, Bhole Shankar and Nana, that they had caused the murder of the deceased and his dead body was found lying in the hut of the father of the applicant and all the accused persons were standing near the dead body armed with lathi.
4. Counsel for the applicant also submits that no one will stand near the dead body after committing the murder. He has further submitted that the deceased was a drunkard and though he used to live in the village but was not liked by the villagers. Someone caused his murder and the applicant has been falsely implicated in this case because he used to provide food to the deceased who was destitute. The deceased was addict of liquor and he had sold his all agricultural land. The applicant alleges false implication in this case. The applicant is in jail since 20.03.2023 and has no criminal history to his credit.
5. On the other hand learned A.G.A has opposed the prayer for bail.
6. Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping 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., passed in S.L.P (Crl.) No. 5191 of 2021; considering 5-6 times overcrowding in jails over and above their capacity by the under trials 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.
7. Let the applicant, Bhuri Singh @ Bhura, involved in Case Crime No. 29 of 2023, under Sections- 302, 504, 506 IPC, Police Station- Vijaygarh, District- Aligarh, 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 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 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.
(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.
8. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
9. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."
2. Criminal Misc. Bail Application No. 37835 of 2023 (Nahna @ Sonu Vs. State of U.P.) -
"1. List revised.
2. Heard Sri Jitendra Pal Singh Jadaun, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.
3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Nahna @ Sonu, seeking enlargement on bail during trial in connection with Case Crime No. 29 of 2023, under Sections 302, 504, 506 I.P.C., registered at Police Station Vijaygarh, District Aligarh.
4. The FIR of the matter was lodged on 20.03.2023 at 07:12 am by Kalicharan against the applicant, Bhoori Singh and Bhole Shankar alleging therein that his brother Ram Khilari used to live in the house of Shiv Dayal and had some love relationship with his wife Meera Devi. In the night of 19/20.03.2023 at about 01:00 am he received an information that his brother Ram Khilari is being assaulted by the family members of Shiv Dayal on which he and Satyaveer went there and saw Bhoori Singh, Bhole Shankar and Nahna the applicant assaulting his brother on which he intervened to save him and then accused persons abused him and threatened him and told him to run away. He then returned back at 05:00 am with Satyaveer to the house of Shiv Dayal and saw his brother lying dead in the hut. The FIR has thus been lodged.
5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecution story is totally false and concocted inasmuch as the incident in the present case stated to have taken place on 20.03.2023 at about 01:00 am on which the First Information Report was lodged at 07:12 am wherein the first informant states to have seen the incident along with one Satyaveer and on threatening he went away from the said place and then returned after four hours at 05:00 am and then saw his brother to be dead. It is further argued that despite the fact that the first informant and Satyaveer are the alleged eye witnesses of the incident but there is no weapon of assault mentioned in the FIR. It is argued that even thereafter the First Information Report was lodged after about two hours, the place of occurrence and the police station is stated to be at a distance of only three kilometers. It is argued that the conduct of the first informant is highly improbable. It is argued that as per the probabilities, the case appears to be a night incident which was noticed in the morning wherein the deceased was found to be dead and then a concocted version has been disclosed in the First Information Report regarding the assault by the three accused persons including the applicant of which the first informant and one Satyaveer are being claimed to be eye witnesses. It is further argued that co-accused Bhuri Singh @ Bhura has been granted bail by a co-ordinate Bench of this Court vide order dated 11.08.2023 passed in Crl. Misc. Bail Application No. 18411 of 2023 (Bhuri Singh @ Bhura Vs. State of U.P.), copy of the order is annexed as annexure 10 of the affidavit. He further argued that the applicant has no criminal history as stated in para 29 of the affidavit and is in jail since 20.03.2023.
6. Per contra, learned counsel for the State opposed the prayer for bail and argued that the first informant and Satyaveer are the eye witnesses of the incident who have seen the incident and as such the prayer for bail of the applicant be rejected.
7. After having heard learned counsels for the parties and perusing the records, it is evident that although the first informant is stated to be an eye witness along with one Satyaveer but his conduct is against human nature. He states to have received an information regarding assault on his brother Ram Khilari by the accused persons after which he reached the place of occurrence with one other person and on threatening he goes back and then returns after four hours and see his brother dead. In the meantime, there is no action taken by him. Subsequently after two hours of his returning back, the First Information Report has been lodged. The present incident is a night incident.
8. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
9. Let the applicant Nahna @ Sonu, be released on bail in the aforesaid case crime number 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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.
(v) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
10. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
11. The bail application is allowed."
6. On the above premise, he submits that the case of present applicant is similar and identical to aforementioned named/charge sheeted co-accused, who have already been enlarged on bail. There is no such distinguishing feature on the basis of which, the case of present applicant could be so distinguished from aforementioned co-accused so as to deny bail to the present applicant. It is thus urged that in view of above and for the facts and reasons recorded in the bail orders of aforementioned co-accused, applicant is also liable to be enlarged on bail on the ground of parity.
7. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 25.04.2023. As such, he has undergone more than 5 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is also liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Criminality committed by named/charge sheeted accused is joint and common. Therefore, same is incapable of separation or segregation. As such, no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
9. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that the similarly situate and circumstanced named/charge sheeted co-accused have already been enlarged on bail, the learned A.G.A. could not point out any such circumstance from the record distinguishing the case of present applicant from bailed out co-accused so as to deny bail to the present applicant, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out from the record any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objection raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.
10. Accordingly, the bail application is allowed.
11. Let the applicant-Bhole Shankar, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, 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 THE HIM/HER 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.
12. 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 :- 21.9.2023 Vinay