Court No. - 67
Case :- CRIMINAL APPEAL No. - 2621 of 2021 Appellant :- Deepu Nishad Respondent :- State of U.P. and Another Counsel for Appellant :- Abhinav Gaur,Ajay Singh,Ankit Shukla,Mohd. Rashid Siddiqui Counsel for Respondent :- G.A.,Ajay Singh,Dewarshi Kumar Rai
Hon'ble Rahul Chaturvedi,J.
Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Ankit Shukla, learned counsel for the appellant, Sri Ajay Singh and Sri Dewarshi Kumar Rai, learned counsel for the informant as well as learned A.G.A.
Counter affidavit filed by learned counsel for the informant today in the Court is taken on record. Learned counsel for the appellant does not want to file any rejoinder affidavit and wants to argue the case on merit. Under the circumstances, the Court is deciding the present appeal on merits.
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 for setting-aside the impugned order dated 15.06.2021 passed by In-charge Special Judge, SC/ST Act, Kanpur Nagar in Bail Application No.1920 of 2021, arising out of Case Crime no.39 of 2021, under Sections 147, 148, 149, 302 I.P.C. and Section 3(2)(5), 3(2)5Ka of SC/ST Act, Police Station-Nawabganj, District-Kanpur Nagar.
While opening his submissions, learned Senior Counsel appearing on behalf of the appellant has drawn the attention of the Court to the FIR lodged by Shiv Kumar on 19.02.2021 at 23:56 hours for the incident of firing on the same day around 23:00 hours against five named and two unknown persons including the appellant. From the text of the FIR, the prosecution case in brief is that around 11 in the night on the date of incident, the informant was studying and all of a sudden, he heard that there was chorus outside the house. After coming out, he saw that his two brothers namely Raj Kumar and Ravi were lying in the pool of blood near Panchmukhi Hanuman temple and all the named assailants were assaulting by their respective weapons. The role attributed to the appellant was of exhorting the mob to eliminate these persons.
On this, it was submitted by learned counsel for the appellant that from the FIR itself, it is clear that role attributed to the present appellant is quite distinguishable from the others who actually participated in the commission of the offence. On the similar lines and fashion, the other eye witnesses have given their statements. The post mortem report indicates that both the deceased were mercilessly assaulted by fire arm, chapad, axe and other sharp edged weapons. The post mortem of Raj Kumar who was brought dead to the hospital at 11:50 pm on 19.02.2021 indicates that he has sustained as many as 24 lethal injuries including chopped wound, incised wound, laceration, contusion, stabbed wound and lastly fire arms whereas another co-accused Ravi who has brought dead along with the deceased, too has sustained eight ante mortem injuries over his person of different shape and variety and cause of death is fire arm. On this, learned Senior Counsel next argued that the case of the appellant is distinct and distinguishable and there is no role attributed to the appellant in actual participation of commission of the offence.
Per contra, learned A.G.A as well as learned counsel for the opposite party no.2 has drawn the attention of the Court to the 161 Cr.P.C. statement of Awadhesh, the so-called eye witness. The 161 Cr.P.C. statement was recorded(Annexure No.14) on 19.02.2021 and yet another independent witness Abhishek Yadav whose 161 Cr.P.C. statement was recorded in C.D. Parch No.41 on 15.05.2021 almost after three months in which they have attributed the role to the appellant of pelting stone but Awadhesh Yadav in his statement has clearly mentioned that he was so scared that he could not see anything and hide himself inside the bathroom.
In rebuttal, learned counsel for the informant has unable to dispute the fact that role attributed to the appellant is of exhortation and mobilising the others to commit the murder of the deceased persons. It is further pointed out by learned counsel for the informant that the appellant has a long criminal history to his credit and release of the appellant on bail, would be detrimental to the interest of the fair trial.
Learned counsel for the appellant has drawn the attention of the Court to paragraph no.62 and 66 to his affidavit in which he has explained his criminal antecedents. There is one case of Section 307 IPC in the year 2012 during student days and in the year 2013, another case was registered under section 302, 201 IPC in which the police after investigation, has submitted the final report. There are two other cases which were pasted by the State as a preventing measure under section 110 Cr.P.C. and initial proceeding under section 3/4 of Gunda Act. Lastly, the recent case against the police atrocities in case crime no.39 of 2020. In fact, there are 2-3 cases to the credit of the appellant and he is public figure being member of Zila Panchayat.
It has been contended by learned Senior Counsel that being a public figure, he has been falsely dragged in the commission of the present offence.
Taking into account the totality of the circumstances and the role attributed to the appellant and the injuries sustained by the deceased person, the Court is of the considered opinion that the appellant is liable to be bailed out. However, case of the appellant shall not be taken as a precedent while considering the bail applications of rest of the co-accused persons.
Let the appellant-Deepu Nishad, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two Heavy 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.
After release of the appellant, it is expected from the trial Court to ensure the protection of the witnesses and would see that the appellant should not intimidate or temper the evidences. In the event, if the trial Court finds that he is involved himself in terrorising, tempering or intimidating any of the witnesses, after small investigation regarding the truthfulness of those allegations, it is open for the trial Court to cancel the bail of the appellant by recording the good reasons. Secondly, it is expected from the trial Court to gear up the matter and make necessary endeavour to conclude the trial within a period of one and half years from the date of production of certified copy of this order.
Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated impugned order dated 15.06.2021 passed by In-charge Special Judge, SC/ST Act, Kanpur Nagar in Bail Application No.1920 of 2021, arising out of Case Crime no.39 of 2021, under Sections 147, 148, 149, 302 I.P.C. and Section 3(2)(5), 3(2)5Ka of SC/ST Act, Police Station-Nawabganj, District-Kanpur Nagar, is hereby set aside.
Order Date :- 19.8.2021 Sumit S