High Court
Case Details
Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3639 of 2022 Applicant :- Haji Mohammad Raza Opposite Party :- State Of Uttar Pradesh Through Its Principal Secretary Home Counsel for Applicant :- Mohammad Khalid,Imran Ullah Counsel for Opposite Party :- G.A.,P.K. Singh,Suraj Kumar Singh and Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4487 of 2022 Applicant :- Rahat @ Mohammad Ayaz Opposite Party :- State of U.P. Counsel for Applicant :- Imran Ullah,Mohammad Khalid Counsel for Opposite Party :- G.A. Hon'ble Ali Zamin,J.
Legal Reasoning
Heard Sri V.K. Srivastava learned senior counsel for the applicants, Sri Manish Goyal learned A.A.G. assisted by Abhijeet Mukherjee and Sri A.K. Sand learned A.G.A. for the State as well as learned counsel for the informant and perused the material on record. Both bail applications arose out of same case crime No.771 of 2021, therefore, both applications are decided together by common order. The present bail application has been filed by the applicants with a prayer to enlarge them on bail in Case Crime No.771 of 2021, under Sections 395, 307, 504, 506, 153A I.P.C. & 7 Criminal Law Amendment Act, P.S. Kotwali, District Fatehpur. Learned counsel for the applicants submits that according to F.I.R. version on 22.11.2021 at about 3:00 p.m. informant was talking with Imran party worker near Sardar Hospital at that time applicant Haji Mohammad Raza along with Shamshad, Junaid @ Junna, Gulamraeen and 15 to 20 unknown persons coming to the informant started abusing to Hon'ble Prime Minister, Chief Minister of the State and B.J.P., on objection they started beating him badly. It is also submitted that condemning the Hon'ble Prime Minister and Honble' Chief Minister does not come under the purview of Section 153-A I.P.C. It is alleged that applicants are a land grabber, criminal and history sheet is also recorded in the police station. Haji Mohammad Raza attacked him by sharp knife and strangled his neck with intention of killing him, Rahat, who came along with the applicant Haji Mohammad Raza also committed marpeet with him. Informant ran to the street next to Sagar Hotel to save his life then applicants, Shamshad, Junaid @ Junna, Gulamraeen and 10 unknown persons caught him by chasing and looted Rs.14,600/- from his pocket. All the aforesaid persons had illegal arms, Rahat assaulted him by butt of the illegal arms on which he received injury on his head and all the persons dragged him and started taking him towards Shagun Marriage Hall and again committed marpeet at the crossroad, hearing the noise people gathered and started to intervene then life of informant was saved. As per injury report injury no.1 is contused swelling over left parietal region 6 cm above left ear pinna about 4 x 3 cm in size, injury no.2, multiple abraded contusion over neck to front of chest in 16 x 15 cm area of various sizes (Largest 7 x 1.5 cm x 5 x 1 cm, 3 x 1 cm) 8 cm from Rt. Nipple and 7 cm from left nipple kept and x-ray advised, injury no.3, abraded contusion 1.5 x 1 cm over Rt. Side of face 1 cm lateral to Rt. Angle of mouth, injury no.4, abraded contusion 7 x 3 cm over abdomen on left side 2 cm from umbilicus, injury no.5, abraded contusion 7 x 3 cm over Rt. Hand between Rt. Thumb and index fingers, injury no.6, abraded contusion 4 x 3 cm over RT. Leg anteriorly 9 cm above ankle joint, injury no.7, abraded contusion 6 x 4 cm over left thigh laterally 10 cm above left knee joint, injury no.8, L.W. 2 x 1 cm over left toe posteriorly, fresh bleeding +nt, injury no.9, abraded contusion 3 x 2 cm over left foot, according to opinion of Doctor all injuries were simple in nature except injury no.2 which was kept and x-ray advised. As per x-ray report duration fresh caused by hard and blunt object referred for x-ray cervical spine- AP/Lat. As per x-ray report, no radiological bony abnormality seen under part visualized. He further submits that in Criminal Misc. Bail Application No.28420 of 2009 (Ramakant Yadav vs. State of U.P.), this Court has observed that criminal antecedent of the applicants would not be ground to refuse bail of the applicant when he is otherwise entitled for bail. This order was challenged before the Supreme Court and order of this Court has been affirmed in Maulana Mohammad Amir Rashadi vs. State of U.P. and another, (2012) 2 SCC 382, in para 10 of this judgement Hon'ble Apex Court has observed that "It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.". He further submits that except criminal history, there is no such injury as alleged in the F.I.R. He further submits that at the time of registration of the present case two more cases are registered against the applicant Haji Mohammad Raza i.e. Case Crime No.773 of 2021, under Sections 148, 147, 332, 353, 506, 504, 120-B I.P.C., P.S. Kotwali, Fatehpur and Case Crime No.774 of 2021, under Sections 147, 3321, 353, 323, 506, 504 I.P.C., P.S. Kotwali, Fatehpur in which he has been granted bail by the court below which have been explained in para 19 of the affidavit filed in support of bail application. It is also submitted that the applicant Haji Mohammad Raza has criminal history of eighteen more cases, in which either he has been acquitted or final report has been submitted or exonerated or compromised which have been explained in para 20 of the affidavit filed in support of bail application. Applicant Rahat @ Mohammad Ayaz has also previous criminal history of eight cases in which he has been acquitted, exonerated or matter has been compromised which has been explained in para 3 of the supplementary affidavit and he has been implicated in case crime No.774 of 2021 in which he has been enlarged on bail by court below which has been explained in para 4 of the supplementary affidavit. Applicant Haji Mohammad Raza is a political leader and member of Samajwadi Party and applicant Rahat @ Mohammad Ayaz is supporter, due to political Vendetta they have been falsely implicated. There is no possibility of the applicants of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicants are enlarged on bail, the applicants shall not misuse the liberty of bail. It is next contended that the applicants are languishing in jail since 25.11.2021. Per contra, learned A.A.G. as well as A.G.A. and private counsel for the informant opposed the bail prayer of the applicants and submits that allegation against the applicant Haji Mohammad Raza is that he also pressed the neck of the informant and as per injury report, injury no.2 multiple abrasion contusion of different size over neck has been found which was advised for x-ray. As per Modi medical jurisprudence 24th Edition, chapter 28 page 594, "a forceful blow over the neck can cause a fracture of the larynx, involving thyroid cartilage and cricoid cartilage or rupture of the trachea to cause death either by spasm or oedema of glottis or by suffocation due to internal bleeding into the larynx or due to surgical emphysema. Wounds of the neck are mostly incised and rarely punctured. In India, they are more often homicidal than suicidal and sometimes accidental. They usually instantly fatal, if the large blood vessels, such as the carotid arteries and jugular veins of the neck are cut, but this is not always so, as some cases have been recorded in which persons have run a certain distance after the carotid arteries as well as the internal jugular veins had been cut. Hemorrhage from the severance of a small vessel, such as the superior thyroid artery, may cause death, if immediate surgical aid is not available". Dr. Rajesh Kumar has stated that death could have happened if the neck had been pressed a little more. He further submits that during the period of Samajwadi Party Government, several cases were registered against the applicants, therefore, the contention of learned counsel for the applicant is wrong that due to political vendatta, they have been implicated. Further submits that as per judgement which is annexed at page no.31 of the supplementary affidavit onwards, in Case Crime No.199 of 1992, witnesses turned hostile, in Case Crime No.283 of 1992, witnesses were declared hostile. He next submits that in Case Crime No. 331 of 1992 , 39 dates were fixed but no witnesses came forward for deposing in support of prosecution case. It is also submitted that against applicant Haji Mohammad Raza 21 criminal cases are registered since 1992 to 2021. He further submits that in the case of Vinod Kumar vs. State of Punjab (2015) 3 SCC 220, it has been held need of expeditious disposal so that accused do not get time to win over witnesses, and in Periyasami vs. State of Tamil Nadu, (2014) 6 SCC 59, there was huge gap of five years between recording of his examination and re-examination, Supreme Court has held that it is clear from this that recording of his evidence was unduly prolonged and in that period an effort was made to win him over and in the case of Rajesh Yadav and another vs. State of U.P., 2022 SCC Online SC 150, Vinod Kumar vs. State of Punjab and Periyasami vs. State of Tamil Nadu, Supreme Court has observed that long adjournments are being given after completion of the chief examination, which only helps the defense to win them over at times with passage of time and reiterated that trial court shall endeavour to complete the examination of private witnesses both chief and cross on the same day as far as possible. Cross examination of the witness should be completed same day so that witness is not wonover and become hostile. He also referred paras 26 to 33 of the case of Ash Mohammad vs. Shivraj Singh @ Lalla Babu and another, (2012) 9 SCC 446, specifying para 30 "We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offence usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused". In this case High Court granted bail but Supreme Court set aside the order of the High Court considering history sheet of 52 cases out of which 30 cases were pending against him. Victim was kidnapped and kept in confinement for eight days, because he had shown some courage to appellant Ash Mohammad. He further referred paras 14, 15 and 16 of State of Maharashtra and another vs. Pappu @ Suresh Budharmal Kalani, 2014, (86) ACC 336 (SC) in which order of High Court granting bail was set aside considering that appellant had criminal history of 52 cases out of them 20 cases were registered before going to jail and 32 cases registered after being released by the Supreme Court on conditional bail. He also referred case of Neeru Yadav vs. State of U.P. and another (2016) 15 SCC 422, paras 5, 6, 13, 14, 16, 18 and 19. In this case High Court weighed the doctrine of parity but ignored the criminal antecedent of heinous nature in result order granting bail was set aside. He has also referred the cases of Chandrakeshwar Prasad @ Chandu Babu vs. State of Bihar , (2016) 9 SCC 443 and Sudha Singh vs. State of U.P. and another, (2021) 4 SCC 781, regarding factors to be considered for grant or denial of bail and reiterated the principles laid as (i) whether there was a prima facie or reasonable ground to believe that the accused had committed the offence, (ii) nature and gravity of accusations, (iii) severity of the punishment in the event of a conviction, (iv) danger of the accused absconding or fleeing, if granted bail, (v) character, behaviour, means, position and standing of the accused (vi) likelihood of repetition of the offence, (vii) reasonable apprehension of the witnesses being influenced and (viii) danger of justice being thwarted by grant of bail. Lastly he submits that applicants has criminal history, injured and independent witnesses Imran, Amit and Rumin has supported the prosecution version which is corroborated by injury report and if the applicants are released on bail, they will tamper with the evidence and pressurize/intimidate the prosecution witnesses, therefore, applicants are not entitled for bail. Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, cases referred by the parties, nature of injuries received to the injured, acquittal or exoneration of applicant in previous criminal cases registered against them and bailed out by court below in subsequent criminal cases of minor nature registered against them, without expressing any opinion on merit of the case, the applicants are entitled for bail, let the applicants- Haji Mohammad Raza and Rahat @ Mohammad Ayaz involved in aforesaid case crime be released on bail on their furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :- (i) The applicants shall file an undertaking to the effect that they will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicants shall not seek any adjournment on the dates 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. (ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code. (iii) In case, the applicants misuses the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants are 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 them in accordance with law. Order Date :- 23.2.2022 Jitendra Digitally signed by JITENDRA KUMAR PATEL Date: 2022.03.05 13:58:43 IST Reason: Location: High Court of Judicature at Allahabad