Allahabad High Court
Phool Chandra vs State Of U.P. on 6 April, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43464 of 2021 Applicant :- Phool Chandra Opposite Party :- State of U.P. Counsel for Applicant :- Sameer Srivastava,Sr. Advocate Counsel for Opposite Party :- G.A. AND Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7595 of 2022 Applicant :- Suggi Lal Opposite Party :- State of U.P. Counsel for Applicant :- Sameer Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Sageer Ahmad, the learned Senior Counsel assisted by Mr. Sameer Srivastava, the learned counsel for applicants and the learned A.G.A. for State.
Perused the record.
These applications for bail have been filed by applicants- Phool Chandra and Suggi Lal seeking their enlargement on bail in Case Crime No. 41 of 2021, under sections- 147, 149, 323, 506, 427, 302, 364, 342, 201, 34, 120B I.P.C., Police Station- Sarai Aqil, District- Kaushambi, during pendency of trial.
Criminal Misc. Bail Application No.43464 of 2021 (Phool Chandra Vs. State of U.P.) came up for orders on 24.02.2022 and this Court passed following order:-
"Heard Mr. Sameer Srivastava, learned Senior Counsel for applicant and learned A.G.A. for State.
This application for bail has been filed by applicant Phool Chandra seeking his enlargement on bail in Case Crime No. 41 of 2021, under section 147, 149, 323, 506, 427, 302, 364, 201, 34, 120-B IPC, Police Station- Sarai Aqil, District Kaushambi.
On 27.11.2021, this Court passed the following order:
"Sri Sageer Ahmad, learned Senior Advocate assisted by Sri Sameer Srivastava, learned counsel for the applicant and Sri Pankaj Mishra, learned counsel for the State are present.
Learned counsel for the applicant states that there is absolutely no evidence against the applicant except for his name in the First Information Report which is without any basis and on the basis of suspicion only.
Learned counsel for the State states that there is evidence against the applicant. He prays for ten days time to file counter affidavit in the matter.
Let the matter be listed in the week commencing 20.12.2021 as fresh."
Learned counsel for applicant contends that inspite of the fact that a period of almost three months has rolled by from the date of order dated 27.11.2021, no counter affidavit has been filed by learned A.G.A. till date.
Learned A.G.A. submits that following bail/anticipatory bail applications filed by co-accused are already pending before this Court.
(i) Criminal Misc. Bail Application No. 7595 of 2022 (Suggi Lal Vs. State of U.P)
(ii) Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 5016 of 2021 (Krishna Kumar Vs. State of U.P) In view of above, connect aforementioned criminal misc. bail/anticipatory bail applications along with this application for bail.
Matter shall reappear as fresh on 10.3.2022 along with connected matters.
By the next date, learned A.G.A. shall ensure that counter affidavit is filed positively."
Pursuant to above order, aforementioned bail applications stood connected and have now been listed together.
Since both the bail applications arise out of the same case crime number, therefore, same have been heard together and are now being disposed of finally by a common order.
Record shows that in respect of an incident, which is alleged to have occurred on 15.11.2020, a delayed F.I.R. dated 05.02.2021 was lodged by first informant- Ashik Ali (father of the deceased- Rashid Ali) and was registered as Case Crime No.41 of 2021, under section- 364 I.P.C., Police Station- Sarai Aqil, District- Kaushambi. In the aforesaid F.I.R., five persons, namely, Krishna Kumar, Bahauddin, Kavita, Phool Chandra and Ankit Saroj have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that on 15.07.2020, Rashid Ali son of first informant along with his friend Bahauddin Shah went in a Bolero bearing registration no. CP 04 LK 6497 to bring back his wife from Tilhapur, where she was staying at the house of her Mausa (husband of sister of mother of daughter-in-law of first informant). Since then, his whereabouts are not known.
After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. During course of the investigation, named accused Krishna Kumar was arrested. On his pointing out, weapon of assault and the clothes of the deceased were recovered. This accused has also alleged the complicity of following participants in the crime in question, namely, Suggi Lal, Vinod, Ram Babu and Ram Prasad. The element of conspiracy against not named accused surfaced in the statement of named accused Krishna Kumar. On the basis of above, applicant- Suggi Lal, who is a not named accused, was also arrested. Investigating Officer, on the basis of statements of witnesses, namely, Aashiq Ali, Mohd. Ali, Munna Saroj, Bacchu Lal and Bahauddin, examined under section 161 Cr.P.C. as well as other material collected by him, during the course of investigation, which according to him is adverse to named/not named accused opined to submit a charge-sheet. He, accordingly, submitted a charge-sheet dated 06.07.2021, whereby, accused Krishna Kumar, Ram Babu and Vinod Kumar have been charge-sheeted under sections 364, 302, 147, 342, 120B, 201, 149, 427, 323, 506 I.P.C. and accused Bahauddin has been exculpated, whereas accused Ram Prasad has been charge-sheeted only under section 201 I.P.C. Further, on 30.09.2021, accused Kavita and Phool Chandra were charge-sheeted under sections 364, 302, 147, 342, 120B, 201, 149, 427, 34, 323, 506 I.P.C.
At the very outset, Mr. Sageer Ahmad, the learned Senior Counsel for applicants submits that charge-sheeted accused Krishna Kumar has already been enlarged on bail vide order dated 30.11.2021 passed in Criminal Misc. Bail Application No.3712 of 2021 (Krishna Kumar Vs. State of U.P.), which reads as under:-
"1. Heard Sri Sageer Ahmad learned Senior Counsel assisted by Sri Sameer Srivastava, learned counsel for the applicant, learned AGA for the State and perused the material placed on record.
2. The instant bail application has been filed on behalf of the applicant - Krishna Kumar with a prayer to release him on bail in Case Crime No. - 0041 of 2021, under Sections - 364, 302, 147, 149, 342, 120B, 201, 34, 427, 323, 504 and 506 I.P.C., Police Station - Sarai Aqil, District - Kaushambi, during pendency of trial.
3. Having heard learned counsel for the parties, at present:
(i) against FIR lodged on 05.2.2021, the applicant is in confinement since 03.5.2021.
(ii) the applicant claims to have cooperated in the investigation. In any case he is not shown to have unduly evaded arrest.
(iii) the applicant has no criminal history.
(iv) chargesheet has already been submitted yet trial has not commenced. Therefore, there is no hope of early conclusion of the trial.
(v) on prima facie basis, only for purpose of grant of bail, it has been submitted by learned senior counsel for the applicant that the First Information Report was lodged almost three months after the occurrence; dead body was never recovered; as to the FIR allegations, the same are stated to be unfounded; marriage between the deceased and Kavita was performed eleven years ago and there were two children born form that wedlock; there is no earlier allegations or incident of threat to life of the deceased offered by the applicant or any person; then it is submitted that at most prosecution may be able to establish that the deceased was last seen with Wahabuddin in whose Bolero car he had travelled from Sultanpur to Kaushambi; as to the further statement made by said Wahabuddin, it has been submitted that the same is wholly self contradicted; such statements were recorded on about four occasions; on each occasion he has offered to either add or substract from his earlier statement of having either seen or having heard about the applicant's name; recovery of a piece of clothing and assault weapon are stated to be wholly planted; then it has been submitted that other than confessional statement of the applicant obtained upon his arrest, there is no material to proceed against him.
(vi) in any case, no reasonable apprehension has been brought to the fore by the State that the applicant, if enlarged on bail would either tamper with the evidence or delay the trial.
4. In view of the above, without expressing any opinion on the final 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:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressuring the witness, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
5. In case, of breach of any of the above conditions, the bail being granted shall be cancelled.
6. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."
It is then submitted that another named accused Kavita Devi has also been enlarged on bail vide order dated 13.12.2021 passed in Criminal Misc. Bail Application No.42482 of 2021 (Kavita Devi Vs. State of U.P.), which read as under:-
"Heard Sri Sageer Ahmad, learned Senior Counsel assisted by Sri Sameer Srivastava, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicant with a prayer to release her on bail in Case Crime No.0041 of 2021, under Sections 147, 149, 323, 506, 427, 302, 364, 342, 201, 34,120-B I.P.C., P.S. Sarai Aqil, District Kaushambi, during pendency of the trial.
It is argued by learned counsel for the applicant that applicant is wife of deceased; applicant solemnized marriage with deceased eleven years ago and there were two children born from that wedlock. He next argued that co-accused Krishna Kumar, on whose pointing out cloths and assault weapon have been recovered, has been granted bail by Co-ordinate Bench of this Court vide order dated 30.11.2021 passed in Crl. Misc. Bail Application No.37121 of 2021, copy of the bail order has been provided by counsel for the applicant. It has been further argued that Wahabuddin, who was last seen with deceased in Bolero car and travelled from Sultanpur to Kaushambi, has been exonerated by the investigating officer; there is no material to proceed against the the applicant; the applicant has no criminal history. Moreover, there is no prospect of trial of the present case being concluded in near future. The applicant is languishing in jail since 13.07.2021 and in case she is enlarged on bail she will not misuse the liberty of bail and co-operate in trial.
Learned A.G.A. has opposed the bail prayer of the applicant.
Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, evidence, complicity of accused and without expressing any opinion on the merits of the case and the mandate laid down by the Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant, Kavita Devi be released on bail in the aforesaid case on her 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.
1. The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
4. 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail."
It is then submitted that one out of the five not named accused, Vinod Kumar has also been enlarged on bail, vide order dated 14.12.2021 passed in Criminal Misc. Bail Application No. 33850 of 2021 (Vinod Kumar Vs. State of U.P.). Same has been placed before the Court, which is taken on record.
"Rejoinder affidavit has been filed and the same is taken on record.
Heard Sri Saghir Ahmad, learned Senior Counsel assisted by Sri Sameer Srivastava, learned counsel for the applicant as well as learned A.G.A. for the State and perused the entire record.
None has appeared on behalf of the first informant despite taking case in revised list.
The present bail application has been filed by the applicant in case crime No. 41 of 2021, under Sections 364, 302, 147, 149, 342, 120B, 201, 34, 427, 323 & 506 IPC, police station Saraiakil, District Kaushambi with the prayer to enlarge the applicant on bail.
It has been argued by the learned Senior Counsel for the applicant that applicant is innocent and he has been falsely implicated in this case. Applicant is not named in the F.I.R., which was lodged against co-accused Krishna Kumar, Bahauddin, Kavita, Phoolchand and Ankit Saroj. The involvement of the applicant has been shown on the basis of statement of co-accused. There is no eye-witness of the alleged incident and that there is also no such circumstantial evidence that deceased was last seen with the applicant. The dead body of the deceased has not been recovered. It has further been submitted that no specific role has been assigned to the applicant.
Learned Senior counsel submitted that co-accused Krishna Kumar, at whose pointing out recovery was shown, has already been granted bail by the co-ordinate Bench of this Court vide order dated 30.11.2021 in Crl. Misc. Bail Application No. 37121 of 2021. Further co-accused, Kavita, who is wife of the deceased, has already been granted bail by the co-ordinate Bench of this Court vide order dated 13.12.2021 in Crl. Misc. Bail Application No. 42482 of 2021. It has been submitted that as per prosecution version, the motive of the incident was shown on the part of co-accused Kavita Devi. Applicant has no motive at all to indulge in any such incident. It has been further submitted that no recovery of any weapon or any other incriminating article has been shown from the applicant. It was submitted that applicant is in jail since 19.4.2021 having no criminal history and in case, applicant is enlarged on bail, the applicant will not misuse the liberty of bail.
Learned A.G.A. has opposed the prayer for bail, however, it has not been disputed that similarly placed co-accused have already been granted bail.
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 Vinod Kumar involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned subject to the following conditions:
1. The applicant will not tamper with the evidence during trial.
2. The applicant will not pressurize/intimidate the prosecution witnesses.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant will not try to contact, threat or otherwise influence the complainant or any of the witness of the case.
In case of breach of any of the above condition, the court below shall be at liberty to cancel the bail of applicant in accordance with law."
On the aforesaid premise, Mr. Sageer Ahmad, the learned Senior Counsel submits that main role for causing death of the deceased has been assigned to named and charge-sheeted accused, Krishna Kumar. The weapon of assault as well as clothes of the deceased have been recovered on his pointing out. However, he has already been enlarged on bail. It is also contended that complicity of named accused in the crime in question has surfaced in the confessional statement of named and charge-sheeted accused Krishna Kumar, who has already been enlarged on bail. He, therefore, contends that for the facts and reasons recorded in the order of above named accused, applicants are also liable to be enlarged on bail. There is no such distinguishing feature on the basis of which, the case of present applicants can be distinguished from aforesaid accused, who have already been enlarged on bail. It is thus urged that for the facts and reasons mentioned in the bail orders of aforementioned named accused, applicants are also liable to be enlarged on bail. Reliance in support of above is also placed upon order dated 14.12.2021 passed in favour of one of the not named accused.
It is next contended that present case is a case of circumstantial evidence and, therefore, same has to be considered in the light of parameters laid down by the Supreme Court in Sharad Birdhi Chand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 for deciding the case based on circumstantial evidence. Upto this stage, there is no evidence to show that any motive can be attached to the applicants to commit the crime in question. There is no complete chain of events against applicants. The incriminating circumstances, which are pressed against applicants, are not in proximity to time and situation of the occurrence. As such, even if they are proved, same shall not point at the guilt of the accused/applicant. As per the statement of the named accused Krishna Kumar, only conspiracy has been alleged against applicants. In the submission of learned Senior Counsel, the evidence with regard to offence punishable under section 120B is subject to trial evidence as conspiracy is a closed door exercise. There is no other evidence against applicants upto this stage, for implicating them in the crime in question.
It is lastly contended that applicants are men of clean antecedents, inasmuch as, they have no criminal history to their credit except the present one. Applicants- Phool Chandra and Suggi Lal are in jail since 20.08.2021 and 19.04.2021 respectively. As such, they have undergone sufficient period of incarceration. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. has opposed these applications for bail. He submits that since applicants are charge-sheeted accused, as such, they do not deserve any indulgence by this Court. However, the learned A.G.A. could not dispute the factual and legal submissions urged by learned Senior Counsel.
Having heard learned Senior Counsel for applicant, learned A.G.A. for State, upon perusal of record and keeping in view the nature of offence, evidence, complicity of accused and accusations made but without expressing any opinion on the merits of case, applicants have made out a case for bail. Accordingly, bail applications are allowed.
Let the applicants, Phool Chandra and Suggi Lal be released on bail in aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY 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 APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL. IN CASE OF THEIR ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANTS FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE 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 APPLICANTS 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 THEM 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 APPLICANTS.
However, it is made clear that any wilful violation of above conditions by applicants, shall have serious repercussion on their 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 condition mentioned above.
Order Date :- 6.4.2022 Saif