Court No. - 53
Case :- CRIMINAL APPEAL No. - 557 of 2019 Appellant :- Prem Chandra @ Makkhan Respondent :- State Of U.P. And Another Counsel for Appellant :- Mani Shanker Pandey Counsel for Respondent :- G.A.
Hon'ble Ghandikota Sri Devi,J.
It is submitted by learned A.G.A. that the information regarding filing of the present criminal appeal by the appellant was duly served upon the informant/respondent no.2 on 6.2.2019.
Heard learned counsel for the appellant and learned A.G.A. for the State. None appears on behalf of the respondent no.2.
Perused the record.
This Criminal Appeal under section 14-A(2) of the Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is preferred against the order dated 21.12.2018 by which bail application of the appellant was rejected by IInd Additional Session Judge/Special Judge, SC/ST Act, Allahaabad in Bail Application No.6315 of 2018 ( Premchandra alias Makkhan vs. State of U.P.) arising out of Case Crime No.110 of 2018 under sections 147, 302, 34 I.P.C. and Section 3(2)5 SC/ST Act, PS. Holagarh, District Allahabad, whereby the learned trial court by impugned order has rejected the bail application moved on behalf of the applicant/appellant. By way of this appeal, the applicant/appellant is seeking bail in the aforesaid sections.
According to prosecution version the informant lodged the First Information Report at Police Station Holagarh stating therein that on 4.8.2018 at 10.00 P.M. when his younger brother Kali was standing on road near his house, on two motorcycles accused Tabrej, Firoz, Afroz, Rinku, Chantu, Makkhan and Kaish reached there, due to business rivalry. In furtherance of common intention they fired on the neck of his brother. He died immediately due to firearm injury. It has been contended by learned counsel for the appellant that the appellant/applicant has been falsely implicated, there is only one gunshot injury found on the body of the deceased in the postmortem examination report, whereas six persons are named in the First Information Report and nowhere it is mentioned that which of the accused has fired on the deceased Kali. It is also contended that there was no mention in the First Information Report regarding source of light. It is also contended that it is nowhere stated that the informant was also present on the spot at the time of occurrence or by whom he was informed regarding occurrence. It was further contended that enemity due to business was admitted by the prosecution in the First Information Report itself. Lastly it has been contended that the co- accused Kaish has already been enlarged on bail by another co-ordinate bench of this Court by order dated 7.12.2018 in Criminal Appeal No.5883 of 2018 and the appellant is also entitled to be released on bail on the ground of parity.
Per contra, learned A.G.A. while opposing the prayer for bail of the appellant but did not dispute the factum of ground of parity.
After hearing learned counsel for the parties and on perusal of the record, without commenting on the merits of the case, considering the complicity of the accused, severity of the punishment as well as totality of facts and circumstances of the case, at this stage without adverting to the merits of the case I am of the view that the order dated 21.12.2018 passed by IInd Additional Session Judge/Special Judge, SC/ST Act, Allahabad rejecting the bail application is liable to be set aside.
Accordingly the impugned order order dated 21.12.2018 passed by IInd Additional Session Judge/Special Judge, SC/ST Act, Allahabad is hereby set aside.
The Present Criminal Appeal deserves to be allowed and the same is allowed.
Let the appellant Prem Chandra @ Makkhan be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions:-
1. The appellant shall not tamper with the prosecution evidence and will not seek adjournment if the witnesses are present in court.
2. The appellant shall not pressurize the prosecution witnesses.
3. The appellant shall remain present before the trial court on each date fixed either personally or through his counsel on the date fixed for framing of charge and recording of the statement under section 313 Cr.P.C.. Appellant shall remain personally present in the court. In case of his absence without sufficient cause the trial court may proceed against him under section 229-A of IPC.
In case of flouting of any of the conditions enumerated above, the order granting bail shall automatically stands cancelled.
Order Date :- 26.2.2019 Rk