Court No. - 67
Case :- CRIMINAL APPEAL No. - 798 of 2021 Appellant :- Babli @ Havaldar Respondent :- State of U.P. and Another Counsel for Appellant :- Abhay Pratap Singh,Abhay Pratap Singh Counsel for Respondent :- G.A.,Mandeep Singh
Hon'ble Rahul Chaturvedi,J.
Heard Shri Abhay Pratap Singh, learned counsel for the appellant; Shri Mandeep Singh, learned counsel for the opposite party no.2 and Shri Ghanshyam Kumar, learned A.G.A for the State Perused the record.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed assailing the validity and authenticity of the bail rejection order dated 01.2.2021 passed by learned Additional District and Sessions Judge/Special Judge, SC/ST (PA) Act, District Bulandshahr in Bail Application No.164 of 2021 (Babli @ Havaldar vs. State of U.P) in Case Crime No.1235 of 2020, under Sections 302, 34 I.P.C. and Section 3(2)(5) of SC/ST (PA) Act, Police Station- Khurja Nagar, District-Bulandshahar.
It is submitted by learned counsel for the appellant that the present F.I.R. was lodged by one Vinod Kumar on 21.12.2020 at 12.51 PM at Police Station Khurja Nagar, District Bulandshahr for the incident said to have taken place on the same day at 03.00 AM in the dead hours of the night. The text of the F.I.R. is that when the informant was going to join his job in a factory, enroute there was noise of screaming. The informant rushed to the site and seen that the deceased was assaulted by four persons namely, Dabbu, his brother, Raja and one unknown person. When Dabbu was overpowered by the informant and one Bittan, he disclosed the name of assailants as his brother and Raja and one unknown person. Later on Dabbu too has sneaked away from the spot. From the F.I.R. it is clear that there is no allegation made therein that any firearm was used in the scuffle. Post-mortem report of the deceased Kamal Singh, reveals that he has sustained a firearm wound of entry on occipital region and its corresponding would of exit and the cause of death has been ascertained to be shock hemorrhage on account of ante mortem firearm injury. It has been contended by learned counsel for the appellant that there are allegedly four assailants of the incident but fact remains that the deceased has received only one gun shot injury and it has not surfaced that who is the author of that fatal gun shot. There is no recovery of any incriminating material from the possession of appellant or at his pointing out. The appellant has been nominated in the F.I.R. as 'Dabbu ka bhai' and he has been rope in the present case only on account of being the brother of the accused Dabbu. The appellant is languishing in jail since 22.12.2020.
Learned A.G.A as well as learned counsel for the opposite party no.2 vehemently opposed the prayer for bail but could not dispute the aforesaid fact.
The submissions made by learned counsel for the appellant, prima facie, appear quite appealing and convincing for the purpose of bail only.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail.
Let the appellant-Babli @ Havaldar, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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 APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANT 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.
(iii) THE APPELLANT 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.
(iv) IN CASE, THE APPELLANT MISUSE 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 APPELLANT 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.
(v) THE APPELLANT 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 APPELLANT 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.
However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.
Accordingly, the appeal succeeds and the same stands ALLOWED. Impugned order dated 01.2.2021 passed by Special Judge, SC/ST (PA) Act, District Bulandshahr, is hereby set aside.
Order Date :- 24.9.2021 M. Kumar