High Court
Case Details
Court No. - 65 Case :- CRIMINAL APPEAL No. - 1931 of 2021 Appellant :- Akash Respondent :- State of U.P. and Another Counsel for Appellant :- Vikas Sharma Counsel for Respondent :- G.A.,Akhilesh Kumar Hon'ble Rahul Chaturvedi,J.
Legal Reasoning
In the instant case, there is no dispute that there was an assault by two named and 4-5 unknown persons by their respective lathi, danda and knife, fact remains that the deceased died due to the fatal knife blow, which has been attributed to co-accused Ravish Saini. In totality of the circumstances, it cannot be said with certainty that the appellant, who is said to have armed with lathi, was aware or having a common object to eliminate the deceased. The appellant is seeking bail who is having no criminal antecedents and is languishing in jail since 6.9.2020 and moreover, there is no incriminating recovery from the possession of the appellant. The submissions made by learned counsel for the appellant, prima facie, appear quite appealing and convincing for the purpose of bail only. Keeping in view the totality of circumstances, the role attributed to the appellant, the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail. Let the appellant-Akash, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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 APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL. (ii) THE APPELLANT 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. (iii) THE APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC. (iv) IN CASE, THE APPELLANT MISUSE 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 APPELLANT 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 IPC. (v) THE APPELLANT 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 APPELLANT 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. However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court. Keeping in view that though the complainant belongs to the scheduled caste community and as per arguments of learned counsel for the complainant that the accused/appellant who belongs to a higher caste, after his release, may create all sorts of impediments in the smooth trial and may extend allurement and threats to the informant, his family members as well as other witnesses, thus, it is directed that in such eventuality, all these complaints may be raised by the complainant before the Superintendent of Police concerned who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of complainant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members. Accordingly, the appeal succeeds and the same stands ALLOWED. Impugned order dated 05.3.2021 passed by the learned Special Judge, SC/ST Act, Saharanpur, is hereby set aside. Order Date :- 3.3.2022 M. Kumar Digitally signed by MANISH KUMAR Date: 2022.03.05 10:34:00 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Heard Shri Vikash Sharma, learned counsel for the appellant; Shri Akhilesh Kumar, learned counsel for the opposite party no.2 as well as learned A.G.A for the State and perused the record. Despite the time granted to learned counsel for the opposite party no.2 he has not filed any counter affidavit and he states that he wants to abide by the averments made in the counter affidavit filed by learned A.G.A. Counter affidavit filed by learned A.G.A. is on record. Learned counsel for the appellant proposes not to file rejoinder affidavit, instead he wants to argue the case on merits. This criminal appeal under Section 14 A (2) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed assailing the legality and validity of the impugned order dated 05.3.2021 passed by the learned Special Judge, SC/ST Act, Saharanpur while rejecting the Bail Application No.1039 of 2021, arising out of Case Crime No.370 of 2020, under Sections 147, 148, 149, 302, 307, 504, 506, 34 I.P.C. and Section 3(2)(5) of the S.C./S.T. Act, Police Station-Nakud, District-Saharanpur. He is in jail since 6.9.2020. Contention raised by learned counsel for the appellant is that though the appellant is named in the F.I.R. but fact remains that the role of actual assault has been attributed to co-accused Ravish Saini. In this transaction one Akash lost his life and Roshan has sustained injuries over his person. I have perused the statement of injured Roshan recorded u/s 161 Cr.P.C., in which he attributed the role of actual assault upon co-accused Ravish Saini. Ravish is the star assailant who has given fatal knife blow over the stomach of the deceased, under the circumstances, his case is distinguishable from the appellant. Postmortem report of the deceased is completely in corroboration with the prosecution case, which contains three incised wounds and one stab injury over the person of the deceased and the cause of death is due to antemortem injuries. Learned counsel for the appellant submits that keeping in view the role attributed to the appellant, having no criminal antecedents, he is behind the bars since 6.9.2020, thus, he is entitled for bail. Per contra, learned counsel for the opposite party no.2 has vehemently opposed the prayer for bail by making a mention that the appellant along with other assailants has jointly assaulted upon the deceased in furtherance of common object to kill him. Learned counsel for the opposite party no.2 in support of his contention relied upon the judgment of KUMER SINGH VS STATE OF RAJASTHAN & ANR decided on 20th July, 2021 in Criminal Appeal No.571 of 2021, wherein Hon'ble Apex Court has held : "14. The submission on behalf of the accused that the accused were alleged to have been armed with lathis and therefore they were released on bail is concerned, at the outset, it is required to be noted that all the accused are charged for the offences punishable under Sections 302 and 307 read with Section 149 of the IPC. At this stage, the individual role of the accused is not required to be considered when they are alleged to have been the part of the unlawful assembly. There were 26 injuries found on the dead body of the deceased and 11 injuries on the injured Vikram Singh by blunt and sharp weapons. Therefore, merely because they were armed with lathis cannot be a ground to release them on bail, in the facts and circumstances of the case, ……..." In rebuttal to the aforesaid proposition of law, the learned counsel for the for the appellant cited a judgment of Hon'ble Apex Court in the case of ALLAUDDIN MIAN & ORS SHARIF MIAN & ANR vs STATE OF BIHAR, 1989 AIR 1456, whereby while assessing the merit of Section 149 of I.P.C. the Hon'ble Apex Court has opined thus : "(3)Section 149 I.P.C., creates a specific offence. Since this section imposes a constructive penal liability, it must be strictly construed. [509G] 500 (4) It is not the intention of the legislature in enacting section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under section 149 I.P.C."