Allahabad High Court
Suraj Alias Madan vs State Of U.P. on 27 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:188632 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32613 of 2023 Applicant :- Suraj Alias Madan Opposite Party :- State of U.P. Counsel for Applicant :- Rajeev Goswami,Priyanka Mishra Counsel for Opposite Party :- G.A.,Parvesh Kumar Pandey Hon'ble Rajeev Misra,J.
Heard Mr.Rajiv Goswami, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ramanuj Tripathi, the learned counsel for first informant, who has put in appearance by filing his vakalatnama today in Court, which is taken on record.
Rejoinder affidavit filed by learned counsel for applicant to the counter affidavit filed by learned counsel for first informant is taken on record.
Perused the record.
This application for bail has been filed by applicant Suraj Alias Madan seeking his enlargement on bail in Case Crime No. 96 of 2023, under sections 147, 148, 149, 323, 324, 325, 352, 504, 308, 302, 34 IPC, Police Station- Baldeo, District Mathura during the pendency of trial.
Record shows that in respect of an incident which is alleged to have occurred on 9.3.2023, a belated F.I.R. dated 10.3.2023 was lodged by first informant Chandrabhan and was registered as Case Crime No. 96 of 2023, under sections 147, 148, 149, 323, 324, 325, 352, 504, 308, 302, 34 IPC, Police Station- Baldeo, District Mathura. In the aforesaid F.I.R. applicants Nanand Singh, Shyam Prakash, Promod Kumar, Ramprakash, Jitendra Singh, Ravi Kumar, Khillan Singh, Ashok, Ramakant, Suraj, Sanjay, Devi, Bacchu, Netrapal have been nominated as named accused.
It is apposite to mention here that in the occurrence giving rise to present criminal proceedings, 12 persons sustained injuries, whereas one person Anoop died.
As per the post-mortem report of the deceased, the autopsy surgeon found following ante-mortem injuries on the body of deceased:
(i) L.W. 2 x 1 cm rt. side forehead aove Rt. Eye brow.
(2) Left eye black.
(3) L.W. 2 x 1 cm left side forehead.
(4) I.W. Cervical mark on left hand.
(5) Contusion 3 x 1 cm. lateral to rt. Nipple.
(6) L.W. 1 x. .5 cm above Rt. Medial Mallelous.
In the opinion of autopsy surgeon, the cause of death of deceased is coma as a result of ante-mortem injuries. The injury report of the injured have been brought on record by means of supplementary affidavit.
In respect of the same incident, an application under section 156 (3) Cr.P.C. was filed on behalf of applicant before the Concerned Magistrate, which came to be allowed. Resultantly, a belated F.I.R. dated 19.4.2023 came to be registered which was registered as Case Crime No. 150 of 2023, under sections 147, 148, 149, 323, 452, 354, 307, 376, 511, 34, Police Station- Baldev, District- Mathura. In the aforesaid F.I.R. nine persons namely, Budda Singh, Vishambhar, Mohan Singh, Chandrabhan, Shiv Naresh, Sandeep, Karan Singh, Ram Naresh, Bharat have been nominated as named accused.
It is apposite to mention here that after investigation of aforementioned case crime number, Investigating Officer submitted charge sheet dated 4.6.2023, whereby four of the named accused have been charge-sheeted, whereas investigation is said to be pending against five of the named accused .
With regard to Case Crime No. 150 of 2023, the charge-sheet has also submitted on 28.6.2023, whereby 8 of the named accused have been charge sheeted under sections 147, 148, 149, 323, 324, 325, 352, 504, 308, 302, 34 IPC whereas one of the named accused namely, Anoop (deceased) has been exculpated.
Learned counsel for applicant contends that since cross F.I.R.s have been lodged from both sides, therefore occurrence is admitted to the parties. Only issue which is required to be adjudicated is as to who is the aggressor. According to learned counsel for applicant, up to this stage, no such conclusive evidence has emerged on the basis of which, aggressor can be defined. the said question can therefore, be dealt with by the trial court. As per post mortem report of the deceased, the deceased has sustained three lacerated wounds and one inseized woud on his person. However, author of the injuries sustained by deceased have not been specified in the F.I.R nor is identified in the statement of the witnesses examined under section 161 Cr. P.C. As such, general role has been assigned to all the accused.
It is lastly submitted that even otherwise applicant is man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 10.3.2023. As such, he has undergone more than six months of incarceration. The police report in terms of section 173 (2) Cr.P.C has already been submitted amd therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such circumstance has emerged, necessitating the custodial arrest of applicant during the pendency of trial.
Per contra, the learned A.G.A. for State and the learned counsel for opposite party-2, have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The criminality committed by applicant is joint and common, therefore, incapable of separation and segregation. Applicant and other co-accused have been charge sheeted under sections 147, 148, 149, 323, 324, 325, 352, 504, 308, 302, 34 IPC, as such, it is apparent that an unlaful assembly was formed with a common object and common intention to commit the crime. Therefore, no exception can be carved out in the case of applicant. As such, no sympathy be shown by this Court in favour of applicant.
Having heard the learned counsel for applicant, the learned A.G.A. for State, learned counsel for first informant upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that occurrence is admitted to the parties, inasmuch as cross F.I.R.s have been lodged from both the sides, up to this stage, no such material has emerged on record on the basis of which, it can be conclusively concluded as to who is aggressor in the said crime, is a primaly issue which can be dealt with by trial Court, as per the post mortem report of the deceased, he has sustained three lacerated wounds and one incised wound, the author of the injuries sustained by the deceased has not been specified in the F.I.R. nor identified in the statement of the witnesses examined under section 161 Cr.P.C., general role has been assigned to all the accused, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, inspite of above, learned A.G.A. could not point out any such circumstance from the record necessitating custodial arrest of applicant during pendency of trial, the period of incarceration undergone, the clean antecedents of applicant but without making any comment on the merits of the case, applicant has made out a case for bail.
Accordingly, the bail application is Allowed.
Let the applicant Suraj Alias Madan, 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 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.
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.
Order Date :- 27.9.2023 Arshad