Allahabad High Court
Dharmendra vs State Of U.P. on 17 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20531 of 2022 Applicant :- Dharmendra Opposite Party :- State of U.P. Counsel for Applicant :- Manoj Kumar,Navendu Kumar Mishra Counsel for Opposite Party :- G.A.,Dhirendra Pratap Singh and Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20528 of 2022 Applicant :- Ajay Opposite Party :- State of U.P. Counsel for Applicant :- Manoj Kumar,Navendu Kumar Mishra Counsel for Opposite Party :- G.A.,Dhirendra Pratap Singh Hon'ble Rajeev Misra,J.
1. Heard Mr. Manoj Kumar, the learned counsel for applicants and the learned A.G.A. for State.
2. Though the name of Mr. Dhirendra Pratap Singh Advocate is duly published in the cause list as counsel for first informant in both the bail applications but no one appears on behalf of first informant to oppose these applications for bail.
2. Perused the record.
3. These applications for bail have been filed by applicants-Dharmendra and Ajay respectively seeking their enlargement on bail in Case Crime No. 230 of 2021 under Sections 147, 323, 504, 506, 302,120B and 325 I.P.C., Police Station- Chiluatal, District-Gorakhpur, during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 08.06.2021, a delated F.I.R. dated 09.06.2021 was lodged by first informant Smt. Urmila Devi, which was registered as Case Crime No. 230 of 2021 under Sections 147, 323, 308, 504, 506 I.P.C., Police Station- Chiluatal, District-Gorakhpur. In the aforesaid F.I.R., five persons namely-Manoj Kumar, Sanjay, Dharmendra and Ajay (applicants herein) and Ramsawar have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that named accused armed with Lathi, Danda and Iron Rod came at the house of first informant and thereafter, they assaulted Ramdas (Father-in-law of first informant), Kapil Dev, Tihuri, Kamlesh, Pintu and two others who sustained grievous injuries. Subsequently, one of injured namely Ramdas (father-in-law) of first informant succumbed to the injuries sustained by him.
6. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer came to the conclusion that complicity of two other persons, who are not named in the F.I.R. namely Sangeeta and Satish is also established. Thereafter, he submitted charge-sheet dated 27.08.2021 whereby all the named accused were charge-sheeted under Sections 147, 323, 504, 506, 302,120B and 325 I.P.C
7. Learned counsel for applicants informs that subsequent to aforementioned charge-sheet, Investigating Officer also submitted the supplementary charge-sheet whereby not named accused, namely, Sangeeta and Satish have been charge-sheeted under the charging sections as noted above.
8.. At the very outset, learned counsel for applicants contends that named accused Manoj Kumar has already been enlarged on bail by this Court vide order dated 11.10.2022 passed in Criminal Misc. Bail Application No. 20522 of 2022 (Majoj Kumar Vs. State of U.P. For ready reference same is extracted herein-below:
"Heard learned counsel for the applicant as well as Sri Dhirendra Pratap Singh, learned counsel for the complainant, learned A.G.A for the State and perused the record.
It is submitted by learned counsel for the applicant that he is innocent and has been falsely implicated in the present case for causing injuries to the deceased as a result of which he died. The FIR was lodged against 5 accused persons including applicant. It is also submitted that in this case applicant also sustained injuries in the same incident regarding which cross case Crime No. 231 of 2021 was also registered and the informant's side was aggressor. General role of assault has been assigned against 5 persons though in post mortem report only single injury was found on the person of the deceased. In the circumstances, it cannot be said that the applicant had caused injury to the deceased. He is languishing in jail since 17.05.2022 having no any criminal antecedent and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Learned AGA as well as learned counsel for the complainant opposed the prayer for bail and urged that in this case, injuries were caused to the deceased by the applicant and other 4 accused persons, therefore, he is not entitled for bail.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, nature of injuries, cross case on the side of this applicant 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 Manoj Kumar involved in Case Crime No. 230 of 2021 arising out of Case No. 1773 of 2021, under Sections 147, 323, 504, 506, 302, 120-B, 325 I.P.C., P.S. Chiluatal, District Gorakhpur, be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected of the commission of which he is suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 11.10.2022 "
9. Learned counsel for applicants further submitted that not named accused Satish and Sangeeta have also been enlarged on bail by this Court vide order dated 03.11.2022 and 14.03.2022 passed in Criminal Misc. Bail Application No. 45759 of 2022 (Satish Vs. State of U.P.) and Criminal Misc. Bail Application No. 42106 of 2021 (Sangeeta Vs. State of U.P.), respectively. For ready reference, same are reproduced herein-under:
I. Bail order dated 03.11.2022 of not named accused Satish:
"Heard learned counsel for the applicant, the learned A.G.A. for the State and perused the record.
Learned counsel for the applicant is permitted to make necessary correction in the prayer clause of bail application.
The present bail application has been filed by the applicant in Case Crime No. 230 of 2021 (criminal case no. 17539 of 2022), under Sections 147, 323, 504, 506, 302, 120-B, 325 IPC, Police Station Chiluatal, District Gorakhpur with the prayer to enlarge him on bail.
It is contended by the learned counsel for the applicant that the applicant is not named in the first information report. His name was not taken in the first statement of first informant recorded under Section 161, Cr.P.C. and his name cropped only in the second statement of first informant recorded under Section 161, Cr.P.C. on 18.06.2021. In this statement the allegation is that the entire episode has been planned by the applicant and, thereafter, he left to Lucknow. It is, therefore, contended that even on the basis of this statement it is clear that the applicant was not present at the time of incident. It is next contended that the main accused in the first information report has already been granted bail. It is lastly submitted that the applicant is in jail since 03.09.2022 and in case he is enlarged on bail, he will not misuse the liberty of bail.
Learned AGA has also opposed the prayer for grant of bail to the applicant but could not point out anything material to the contrary.
Considering the facts and circumstances of the case and without commenting upon merits of the case, I am of the opinion that the applicant is entitled to be released on bail.
Let applicant Satish be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional 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 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.
Order Date :- 3.11.2022 "
II. Bail order dated 14.03.2022 of not named accused Sangeeta:
"Heard learned counsel for the applicant, learned counsel for the first informant, learned A.G.A. for the State and perused the record.
It has been argued by learned counsel for the applicant that the applicant is innocent and she has been falsely implicated in this case. Applicant is not named in FIR, which was lodged by first informant against co-accused Manoj Kumar, Sanjay, Dharmendra, Ajay and Ramsanwar alleging that on 8.06.2021 at 8.00 P.M. all the named accused persons have assaulted first informant and her family members and later on, the father-in-law of first informant succumbed to injuries. It has been stated that as per postmortem report, deceased has sustained only one injury at his head and that there is no specification that which of the accused is author of the said injury. Both the parties are neighbors and applicant is well known to the informant but applicant was not named in FIR. In her statement, under section 161 CrPC also, the first informant has not named the applicant. It has been pointed out that name of the applicant has figured in the second statement of informant and in statements of injured witnesses. Even, according to the statements of those witnesses, no specific role has been assigned to applicant. Further, in the same incident, both sides have sustained injuries and that two persons have sustained injuries from the side of applicant and that a cross FIR has been lodged by husband of applicant against complainant's party. The injured have not sustained any serious injury. It has been submitted that in fact applicant has been falsely implicated in this case during investigation merely because she is wife of co-accused Manoj Kumar. It has been submitted that applicant is a lady and she is languishing in jail since 12.06.2021 having no criminal history and that in case, the applicant is released on bail, she will not misuse the liberty of bail and will cooperate in trial.
Learned A.G.A. and learned counsel for the first informant have opposed the prayer for bail and argued that during investigation, injured persons have named the applicant in their statements. In the said incident, one person has died and informant and others have sustained injuries. It was submitted that there is evidence that applicant was involved in the alleged incident.
Considering the submissions of learned counsel for the parties, facts of the case, nature of allegations, period of custody and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, the Court is of the view that a case for bail is made out. Hence, the bail application is hereby allowed.
Let the applicant Sangeeta involved in Case Crime No. 230 of 2021, under Sections 147, 323, 504, 506, 302, 325 and 120-B IPC, P.S. Chiluatal, District Gorakhpur, be released on bail on furnishing each a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:
1. The applicant shall not tamper with the evidence during the trial.
2.The applicant shall not pressurize/ intimidate the prosecution witness.
3.The applicant shall appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she is suspected.
5.The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above condition, the Court below shall be at liberty to cancel bail of applicant in accordance with law.
Order Date :- 14.3.2022 "
9. Learned counsel for applicants submits that criminality assigned to the named accused is common. Father-in-law of the first informant is alleged to have sustained injuries on his head. However, the author of the fatal head injury sustained by deceased has not been mentioned in the F.I.R. nor in the statements of first informant and other witnesses as examined under Section 161 Cr.P.C. It is next contended that named accused Manoj Kumar and not named accused Satish and Sangeeta have already been enlarged on bail by this Court. Criminality alleged against charge-sheeted accused is common. Therefore same cannot be separated or segregated. Case of present applicants is similar and identical to that of named accused and not named accused, who have already been enlarged on bail. There is no such distinguishing feature, on the basis of which, case of present applicants can be distinguished from the aforementioned named accused and not named accused, who have already been enlarged on bail. Considering the facts and circumstances of the case and in view of the facts and reasons recorded in the aforesaid bail orders of named accused and not named accused, applicants are also liable to be enlarged on bail by this Court on the ground of parity. It is lastly contended that applicants are the men of clean antecedents and have no criminal history to their credit except the present one. Applicants are in custody since 12.06.2021. As such, they have undergone more than four and a half months of incarceration. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial. Charge-sheet having been submitted against applicants, therefore, the evidence sought to be relied upon by the prosecution against applicants, stands crystallised. As such, custodial arrest of applicants is not absolutely necessary during course of trial. On the cumulative strength of above, he submits that applicants are liable to be enlarged on bail
10. Per contra, the learned A.G.A. has opposed the present applications for bail. However, he could not dislodge the legal and factual submissions urged by learned counsel for applicants.
11. Having heard the learned counsel for applicants, the learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicants coupled with the fact that named and charge-sheeted accused and not named accused but charge-sheeted accused have already been enlarged on bail, criminality alleged against aforementioned named accused and not named accused is common, there being no distinguishing feature to distinguish the case of present applicants with the aforementioned named accused and not named accused, who have been enlarged on bail but without expressing any opinion on the merits of the case, applicants have made out a case for bail.
12. Accordingly, present applications for bail are allowed.
13. Let the applicants-Dharmendra and Ajay involved in aforesaid case crime number be released on bail on furnishing a personal bond each and two sureties each, respectively 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) Applicants will not tamper with prosecution evidence.
(ii) Applicants 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) Applicants will not indulge in any unlawful activities.
(iv) Applicants will not misuse the liberty of bail in any manner whatsoever.
14. 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 of applicants and send them to prison Order Date :- 17.11.2022/YK