Court No. - 79
Reserved on 26.07.2021 Delivered on 30.07.2021
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24887 of 2021 Applicant :- Vikas Singh Opposite Party :- State of U.P.
Counsel for Applicant :- Ashok Kumar Gupta Counsel for Opposite Party :- Padmaker Pandey
Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant-Vikas Singh, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 01.06.2021, passed by Incharge Sessions Judge, Banda, in Case Crime No.08 of 2021, under Sections 147, 148, 149, 302, 307, 323, 506, 34 I.P.C., Police Station Girwan, District Banda.
2. Sri Viresh Mishra, learned Senior Advocate assisted by Sri Ashok Kumar Gupta, Advocate for applicant, has submitted that alleged occurrence has a cross version also. Informant is a politically influential person. He and his associates, who are co-accused in cross case, have long criminal history. Informant has admitted that there was prior political rivalry between complainant and accused side. It was alleged that applicant and other six co-accused were objected by complainant side when they were demanding money from a contractor, who was constructing a CC Road in the village. While complainant side were witnessing the construction, the accused party came and started assaulting the persons of complainant side. Accused, Anoop Singh, Anil Singh and Vipin were alleged specific role of causing injury by butt of rifle, by firing from a country made pistol and assaulting by Fawda respectively. In the occurrence one person from complainant side, namely, Ajeet died during treatment. Learned Senior Advocate submitted that deceased died due to single firearm injury whereas other alleged injured persons have received simple injuries. It was pointed out that during occurrence as many as five persons from accused side were injured, out of them atleast two suffered grievous injuries. Considering the injuries caused on both sides it would not be possible at this stage to determine, which party was the aggressor. Neither any specific role nor any motive was assigned to the applicant. It is also submitted that so far as applicant is concerned, he has no criminal history and is languishing in jail since 16.03.2021 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
3. Per contra, Sri B.P. Srivastava, learned Senior Advocate assisted by Sri Padmaker Pandey, Advocate appearing for Informant and learned A.G.A. appearing for State, have opposed the prayer for bail. They submit that accused persons also have a detailed criminal history. They were collecting Gunda Tax from the contractors, which was objected by villagers also and there is an evidence on record that accused persons have not even considered the order passed by Sub-Divisional Magistrate with regard to construction of road. There is also evidence that hearing hue and cry many villagers came at the place of occurrence and they retaliate with stones and used force to repulse the accused side. Applicant was one of the member of unlawful assembly who were carrying deadly weapons. They have not only caused multiple injuries to injured persons but also caused death of one person, therefore, applicant is not entitled for bail.
4. I have considered the submissions advanced by rival parties and perused the material available on record.
5(A) 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 criminal antecedents of the accused.
(B) It is also well settled that the Court while considering an application for bail must not go into deep 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.
(C) The Court should record the reasons which have weighed with the count 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.
6. From the submissions advanced by rival parties as well as on the basis of material available on record, it is apparent that there is also a cross version of alleged occurrence. Persons from both sides have got injured and have criminal history also. Deceased has died due to single firearm injury. Presence of both parties at the site is prima facie not disputed. Taking note of the submission that in these circumstances it would not be possible at this stage to decide which party was aggressor and also considering that no specific role was attributed to applicant and he has no criminal history and further that he is languishing in jail since 16.03.2021, this Court is of the view that a case of grant of bail is made out.
7. Let the applicant- Vikas Singh be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses 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 applicant 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 I.P.C.
(v) The applicant 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 applicant 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
8. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
9. The bail application is allowed.
10. Observations made above are only for the purpose of adjudicating the present bail application.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :-30.07.2021 AK Digitally signed by SAURABH SHYAM SHAMSHERY Date: 2021.07.30 17:13:33 IST Reason: Document Owner Location: High Court of Judicature at Allahabad