Court No. - 51
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8515 of 2021 Applicant :- Istkaar Opposite Party :- State of U.P.
Counsel for Applicant :- Indra Bhahadur Yadav,Rajrshi Gupta,Rizwan Ahamad Counsel for Opposite Party :- G.A.,Gaurav Kakkar,Ram Raj Pandey with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41106 of 2020 Applicant :- Chhote Opposite Party :- State of U.P.
Counsel for Applicant :- Arvind Kumar,Rajiv Lochan Shukla,Rajrshi Gupta Counsel for Opposite Party :- G.A.,Gaurav Kakkar,Ram Raj Pandey with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46956 of 2020 Applicant :- Jumma Opposite Party :- State of U.P.
Counsel for Applicant :- Indra Bhahadur Yadav,Sadaful Islam Jafri Counsel for Opposite Party :- G.A.,Gaurav Kakkar,Ram Raj Pandey with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10025 of 2021 Applicant :- Tauhid Opposite Party :- State of U.P.
Counsel for Applicant :- Shambhawi Shukla,Dileep Kumar(Senior Adv.),Rajrshi Gupta Counsel for Opposite Party :- G.A.,Gaurav Kakkar,Ram Raj Pandey
Hon'ble Om Prakash-VII,J.
Since these bail applications arise out of same case crime number, they have been heard together and are being decided by a common order. Criminal Misc. Bail Application No. 8515 of 2021 is being treated as a leading case.
Heard Shri Dileep Kumar, learned Senior Counsel assisted by Shri Rajrshi Gupta, learned counsel for the applicants, Shri N.I. Jafri, learned Senior Counsel assisted by Shri S.I. Jari, learned counsel for the applicant Jumma, Shri M.P. Rai, learned Senior Counsel assisted by Shri Gaurav Kakkar learned counsel for informant as well as the learned A.G.A for the State and perused the record.
It is submitted by Shri Dileep Kumar, learned Senior Counsel appearing for the applicants that the applicants are innocent and have been falsely implicated in the present case. They have not committed the present offence. It is further submitted that initially in this matter F.I.R. was lodged against 23 persons and some more persons were implicated later on taking recourse to the provisions of Section 120-B IPC. Applicants, Farookh, Islamu @ Islamuddin, Bhuttu, Israr, Mehtab, Igne and Suhail were released on bail by this Court. The orders granting bail to the aforesaid accused were challenged before the Apex Court through Criminal Appeal Nos. 410 of 2021, 408 of 2021, 409 of 2021, 411 of 2021, 412 of 2021, 415 of 2021, 413 of 2021, 414 of 2021 (arising out of SLP (Cri.) No. 1643 of 2021). The Apex Court allowed the said SLP, set-aside the said bail orders and relegated the matter to this Court for fresh consideration. It is next contended that present applicants have approached this Court for the first time. Their bail applications have not been considered earlier. They have not actively participated in commission of the present crime. General role has been assigned to them. Referring to post mortem report it is further submitted that injury no.1 found on the body of deceased is only fatal injury. It is not clear as to who caused the said injury. It is next contended that since author of injury no.1, which is fatal, is not clear, applicants are entitled for bail. All the accused, against whom, offence under Section 120-B IPC was levelled, have been released on bail by the trial court itself. Applicants cannot be connected with injury no.1 found on the body of deceased. Referring to injury reports of the injured persons it is further submitted that they are simple in nature and applicants cannot be prosecuted for the offence under Section 302 IPC read with Section 149 IPC. At this juncture, learned Senior Counsel referred to the role assigned to the present applicants in the statement of witnesses recorded under Section 161 CrPC as well as in the F.I.R. and further submitted that if entire prosecution case is taken into consideration, then also they have caused injuries to the injured persons, which are simple in nature, therefore, on this ground also applicants are entitled for bail. Referring to entire documents annexed with the application and the role assigned to the present applicants as well as the medical evidence, learned Senior Counsel relied upon the case laws in State of U.P. vs. Kallu Lal and others, 1985 All LJ 862 and Rudal Singh and others vs. State, 2016 Legal Eagle (ALD) 1858 and submitted that same are equally applicable in this matter and accused applicants can be prosecuted in this case only for the offence under Section 325 IPC. It is also submitted that since author of injury no.1 is not clear and applicants have not caused injury to the deceased, therefore, no prima facie case is made out against the applicants. It is next contended that applicants have been implicated in this case due to previous enmity on false grounds. Medical evidence does not support the oral version.
Shri N.I. Jafri, learned Senior Counsel appearing for applicant Jumma adopting the arguments advanced by Shri Dileep Kumar, learned Senior Counsel submitted that all the criminal cases shown as criminal history have been explained properly. No active role for causing death of deceased Nisar has been assigned to the applicant Jumma. At this juncture, learned Senior Counsel referred to contents of F.I.R., statement of witnesses recorded under Section 161 CrPC and further submitted that provisions of Section 147 and 148 IPC can also not be attracted against the applicant Jumma. Matter shall be decided on the basis of role assigned to each and every accused separately. It is also submitted that prayer for bail on behalf of present applicant cannot be rejected solely on this ground that bail orders passed by this Court have been set-aside by the Apex Court and matter has been relegated for fresh consideration. There is contradiction in the statement of witnesses recorded under Section 161 CrPC on material points.
Shri Dileep Kumar, learned Senior Counsel further submitted that all the criminal cases shown as criminal history against the applicants have been duly explained. It is further submitted that applicants have not made any attempt to cause fire-arm injury to the deceased, whereas they are said to be armed with fire- arm. It is a case of beating and not of killing. They are languishing in jail since 20.5.2020/14.7.2020/ 3.7.2020 and in case they are released on bail, they will not misuse the liberty of bail and will cooperate in trial.
On the other hand, learned Senior Counsel appearing for the informant as well as the learned AGA opposing the prayer for bail submitted that charge has been framed in the matter. It is further submitted that accused applicants were also present on the spot armed with deadly weapon. They have actively participated in commission of present crime. Role assigned to the present applicants is distinguishable with the role of co- accused, who were involved in this matter taking recourse to the provisions of Section 120-B IPC. It is further submitted that applicants have a long criminal history. They were the member of unlawful assembly. Referring to the injury sheet of Mahtab it is also submitted that doctor himself has opined that it was a grievous injury. Since family members of the applicants are extending threat to the witnesses, legal recourse has been taken against them. A prima facie case is made out against the applicants.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws relied upon in the matter.
Order passed by the Apex Court in the aforesaid SLP is as under:
"O R D E R CRL. APPEAL ARISING FROM SLP (CRL.) NO. 1643/2021 Leave granted.
This appeal takes exception to the judgment and order dated 14.12.2020 in Criminal Misc. Bail Application No. 37279 of 2020 passed by the High Court of judicature at Allahabad, thereby releasing the respondent No.2/Accused No.10 (Farookh, S/o Sri Kadam) in connection with FIR No. 272 of 2020 registered at P.S. Baghpat, District Baghpat, Uttar Pradesh for the offence punishable under Sections 147, 148, 149, 307, 323, 302 and 120B of Indian Penal Code.
For the nature of order that we propose to pass, we refrain from expressing any opinion either way on the merits of the controversy. We straightway advert to the reasons weighed with the High Court to grant bail to this accused as can be discerned from the impugned judgment which reads thus:
".....After having heard both the sides and looking to the fact that large number of accused have been implicated in this case; it is not ascertainable as to who is responsible for the injury caused to deceased by which, deceased died and also looking to the fact that there is only role of exhortation and standing on the place of occurrence was found against the applicant, quantum of the punishment, nature of the offence and period of detention in jail, without expressing any opinion on the merits, this case is found to be a fit case for bail "
We will assume that the High Court was impressed by the fact that large number of accused have been named in the FIR and also that the role of concerned accused has not been specifically adverted to.
However, after going through the relevant records, we have no manner of doubt that the High Court has disposed of the matter in a casual manner without specific analysis of the material brought to our notice by the learned counsel for the appellant and the State of Uttar Pradesh.
Accordingly, we set aside the impugned order and relegate the parties before the High Court for reconsideration of bail application afresh on its own merits and in accordance with law.
It is once again made amply clear that the High Court may consider the application in accordance with law after taking into account all aspects of the matter, uninfluenced by any observation (s) made in the impugned judgment and order, including the present order passed by us.
The appeal is disposed of in the above terms. Pending applications, if any, stand disposed of.
CRL. APPEALS ARISING OFROM SLP (CRL.) (NOS. 1641, 1642 AND 1644 OF 2021 AND SLP (CRL.) DIARY NOS. 5273, 5280, 5275 AND 5278 OF 2021 Permission to file Special Leave Petitions is granted. Leave granted.
In these appeals, the High Court has essentially invoked the principle of parity, presumably, in reference to the bail order passed in favour of Farookh (Accused No.10). That order having been set aside, it must follow that the impugned judgment and order in the subject bail applications need to be set aside and all the applications relegated before the High Court for reconsideration on its own merits afresh.
During the course of argument, we have been informed by learned counsel for the State that accused No.5 (Suhail) has been released on bail on the basis of impugned judgment and order passed by the High Court.
As the order has been set aside, he shall surrender within one week from today, so that the High Court may consider his bail application afresh on its own merits.
Until he surrenders, the High Court shall not entertain the bail application filed by the accused No.5 (Suhail) though remanded in terms of this order.
On the other hand, we direct the Investigating Officer to ensure that accused No.5 (Suhail) is arrested after one week from today, if he fails to surrender, as aforesaid.
The appeals are disposed in the above terms. Pending applications, if any, stand disposed of.
Copy of this order be forwarded to the concerned Investigating Officer through email, for information and necessary action. He shall submit compliance report in the Registry of this Court within four weeks from today through email."
In this case in the F.I.R. itself it has been mentioned that present applicants gathered at the place of occurrence armed with deadly weapon. There are a number of injured witnesses, who were trying to save the deceased. Though in the F.I.R. general role has been assigned yet in the statement recorded under Section 161 CrPC of the eye account witnesses / injured witnesses specific role against all the applicants has been assigned. In the F.I.R. it is also mentioned that applicant Istkkar armed with deadly weapon was present on the spot and was involved in causing injuries and was also involved in pushing the deceased and injured from their motor cycles and causing injuries to them. Deceased Nisar died due to injuries sustained in the matter. Applicants Jumma, Tauhid and Chhote were also extending threat to the witnesses and other persons who were trying to save the life of Nisar displaying their weapons. As regards the law laid down in the decisions relied upon by the learned counsel for the applicants is concerned, on minute analysis of the facts of the present matter and role assigned to the present applicants, I am of the view that facts of present matter is distinguishable with the facts of the said decisions, therefore, applicants cannot get any help with the law laid down in the said decisions at this stage. Thus, on close analysis of entire facts and circumstances of the case and comparing the same with the submissions made by the learned counsel for the parties and for the reasons discussed here-in-above, the Court is of the opinion that the present applicants have not made out a case for bail. Present bail applications are liable to be rejected and the same are accordingly rejected.
Order Date :- 16.8.2021 safi