1
In Chamber.
Judgment reserved on 16.4.2021.
Delivered on 04.5.2021.
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31453 of 2020 Applicant :- Manoj Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Dhirendra Singh,Ashutosh Singh Counsel for Opposite Party :- G.A.,Ardhendu Shekhar Sharma,Pradeep Kumar Bhardwaj,Ram Babu Sharma
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Rajeev Lochan Shukla along with Sri Ashutosh Singh, learned counsel for the applicant, Sri R.B. Sharma, learned counsel for the complainant and learned A.G.A. for the State and perused the record.
2. By means of this application the applicant has approached this Court by way of filing the present Criminal Misc. Bail Application to enlarge him on bail after rejection of his bail application vide order dated 17.6.2020 passed by learned Incharge Sessions Judge, Bulandshahar in Case Crime No.25 of 2020 under Sections 147, 148, 149, 302, 307, 504, 506 and 34 of I.P.C., Police Station-Salempur, District- Bulandshahar .
3. It is alleged in the first Information report, lodged by Sri Narender Sharma, Informant that on 16.2.2020 at about 20.38 hours applicant (Manoj Kumar) and other 6 co accused, lying in ambush opened indiscriminate firing on 16.2.2020 at about 2.00 to 2.30 afternoon on his brother Sanjay Sharma and also on Chetan Sharma who came to rescue, causing death of Sanjay Sharma and injuries to Chetan Sharma, when they were going to attend a marriage ceremony.
4. Post mortem of deceased Sanjay Sharma was conducted on 16.2.2020 at about 9.30 P.M. wherein cause of death was opined to be shock and haemorrhage due to antemortem firearm injuries, which were 3 entry and 3 exit fire arm wound shot from close range. Injured Chetan Sharma sustained four lacerated wound and after X-ray, it was opined that cause of injury to be firearm injury, whereas nature of injury is to be simple.
5. Sri Rajeev Lochan Shukla along with Sri Ashutosh Singh, learned counsel for the applicant, appeared through video conferencing submitted that,
(a) First Information Report is anti timed because it mentioned that dead body of deceased was lying at hospital, when it was lodged on 16.10.2020 at 20.38 hours, whereas Inquest was started at 17.30 and concluded at 18.00 hours on the same day i.e. even before the F.I.R. was lodged.
(b) After investigation, out of 7 named accused, 3 named accused have been exonerated, which creates doubt in the prosecution story and charge sheet is filed against applicant and other co-accused only to co-relate the prosecution story to match number of injuries caused to deceased.
(c) Neither specific role was attributed to the applicant nor any recovery was effected from him, who has no previous criminal history also.
(d) Alleged injured eyewitness Chetan Sharma in his statement has attributed the role of firing on co-accused Mukesh only and not attributed any specific role to any of the other co-accused including the applicant, which suggest that he was not an eyewitness.
(e) It is disclosed during investigation that deceased Sanjay Sharma a person bearing criminal antecedent was also a representative of Ex-M.L.A. Shri Guddu Pandit a renowned history sheeter.
(f) Applicant is presently suffering from corona and has Acute Hepatitis with Highly raised Liver Enzymes (Hepatitis B Positive).
6. Learned A.G.A. for the State and Shri. R.B. Sharma, Advocate for informant appeared through video conferencing and opposed the bail. They submitted that:
(i) Injured Chetan Sharma has sustained multiple firearm injuries during the occurrence, as such his presence could not be doubted at the place of occurrence when applicant and co-
accused caused discriminate firing causing death of Sanjay Sharma and injuries to injured Chetan Sharma.
(ii) Name of the applicant along with other co-accused was specifically mentioned in the First Information Report as well as in the statement of injured eyewitness Chetan Sharma.
(iii) Bail application of similarly situated co-accused Anmol was dismissed by order dated 13.10.2020 passed by co- ordinate bench of this Court in Criminal Misc. Bail Application No.23687 of 2020, with direction to the trial court to conclude trial preferably within a period of one year.
7. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
8. In the backdrop of abovementioned submission of the rival parties, law on bail and material available on record, in present case, there are serious charges against the applicant and other co-accused against whom charge-sheet is filed under Sections 147,148, 149, 302, 307, 504, 506 and 34 I.P.C.
for causing death of one person and causing injuries to one person. Deceased has sustained three fire arm injuries and injured suffered four lacerated wound caused by firearm. On the basis of statements recorded during investigation, presence of injured Chetan Sharma at the time of occurrence on place of occurrence could not be doubted. It is also not doubtful that injured Chetan Sharma has sustained injuries.
9. The question as to whether the F.I.R. is ante timed or not cannot be looked while deciding bail application as it would be considered during trial, which is already directed to be concluded expeditiously.
10. Prima-facie, applicant has participated in the commission of alleged crime. Further, bail application of similarly co- accused Anmol was dismissed by co-ordinate bench of the court. Applicant is chargesheeted alongwith Sections 34 and 149 I.P.C. also, which postulates joint criminal liability and common liability of every member of unlawful assembly respectively and since prima-facie applicant’s involvement in the offence is not doubtful, therefore, absence of attributing specific role to the applicant would have no consequence. Therefore, no case of bail is made out.
11. The bail application is rejected.
Order Date :-04.5.2021 SB