Basant Lal v. State of U.P.) was rejected by His Lordship, Hon'ble Saurabh Shyam Shamshery J
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20838 of 2022 Applicant :- Basant @ Basant Lal Opposite Party :- State of U.P. Counsel for Applicant :- Mohit Kumar Singh,Sujata Choudhary Counsel for Opposite Party :- G.A.,A.C.Tiwari(Ac) Hon'ble Rajeev Misra,J. 1. Heard Ms. Sujata Choudhary, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. This repeat application for bail has been filed by applicant- Basant @ Basant Lal seeking his enlargement on bail in Case Crime No. 111 of 2020 under Sections 147, 148, 149, 307, 308, 304, 323, 504 I.P.C., Police Station-Pipari, District-Kaushambi, during the pendency of trial. 4. The first application for bail application of applicant-Basant @ Basant Lal being Criminal Misc. Bail Application No. 29154 of 2020 (Basant @ Basant Lal Vs. State of U.P.) was rejected by His Lordship, Hon'ble Saurabh Shyam Shamshery J., vide His lordship's order dated 07.07.2021. For ready reference order dated 07.07.2021 is reproduced herein-under:- "1. Heard P.K. Singh, learned counsel for the applicant, learned A.G.A. through video conferencing and perused the record. 2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.111 of 2020, under Sections 147, 148, 149, 307, 308, 304, 323 and 504 of I.P.C., Police Station-Pipari, District-Kaushambi after rejection of his Bail Application vide order dated 14.8.2020 passed by Incharge Sessions Judge, Kaushambi. 3. In the present case, it is alleged that on 8.5.2020 at about 4.30 when father (Ram Singh), brother (Vijay Singh) and Nephew (Nanka) of informant were returning returning from field they were ambushed by accused persons in the way. Informant and his brother Guddu reached the place of occurrence. They saw the accused Makan Lal assaulting Vijay Singh by an iron rod. Accused Neeraj and Sanjay were holding country made pistol. Accused Basant (applicant) was holding 'Phawda' accused Chandan and others were having 'Lathi' and 'Stick'. Due to assault, Vijay Singh and Ram Singh became unconscious. Later on, Vijay Singh succumbed to his injuries and died on the same day and the condition of the injured Ram Singh was serious. It was also alleged that there was a prior enmity.
Legal Reasoning
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. (B). 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. (C). 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. (D). 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. 7. Considering the rival submission and after perusing the material on record, prima-facie the applicant along with other co-accused have formed an unlawful assembly and in furtherance of their common intention, they ambushed persons of complainant side while they were coming back from their field with deadly weapons in which one person died due to serious grievous injuries caused on their head and injured suffered lacerated wounds. 8. Section 149 I.P.C. states that "Every member of unlawful assembly guilty of offence committed in prosecution of common object". 9. Prima-facie, applicant was carrying a deadly weapon (Phawda) and was a member of unlawful assembly members thereof in furtherance of their common object ambushed persons of complainant side and assaulted them which resulted into death of one person and caused grievous injuries to injured person. 10. Even if, it is accepted that applicant has not committed any overt act, still in view of Section 149 I.P.C., he could be guilty for the offence committed by any of the member of the same assembly. The offence committed by the applicant is of a very serious nature. 11. Taking into consideration the abovementioned law on bail, it is not a fit case to grant bail to the applicant. 12. Accordingly, this bail application is rejected. Order Date:-7.7.2021" 5. Present application for bail came up for orders before His Lordship Hon'ble Saurabh Shyam Shamshery J. on 06.08.2022 and His Lordship passed the following order:- "Put up this second bail application alongwith previous records before appropriate Bench having the jurisdiction of bail matters, as fresh, after obtaining nomination of Hon'ble the Chief Justice, as presently I am sitting in different jurisdiction. Order Date :- 6.8.2022." 6. Office has submitted a report dated 27.09.2022 stating therein that the matter was placed before Hon'ble the Chief Justice and Hon'ble Chief Justice has been pleased to direct that such matters be listed before regular Bench. Accordingly, this application for bail has come up before this court. 7. Since this is a repeat application for bail therefore, court has raised a query as to what is the new ground taken in the second application for bail. On the aforesaid query, learned counsel for applicant submits that two of the named accused namely Sanjay Yadav and Chandan have been enlarged on bail. Subsequently, co-accused Sanjay Yadav was enlarged on bail vide order dated 25.08.2021 passed in Criminal Misc. Bail Application No. 46285 of 2021. For ready reference same is extracted hereinunder:- "Heard learned counsel for the applicant, learned A.G.A. for the State, learned counsel for the informant and perused the material available on record. The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.111 of 2020, under Sections 147, 148, 149, 323, 304, 504, 307, 308 I.P.C., Police Station Pipari, District Kaushambi. Learned counsel for the applicant submits that according to the FIR version, family of Makkhanlal bore enmity with the family of Rambabu Yadav and a year before mother of the informant filed a case with regard to the molestation and committing marpeet against the family of Makkhanlal. On 8.5.2020 at about 4:30 p.m., informant's father Ram Singh, brother Vijay and nephew Nanka were returning from the field, all of sudden, on the way Makkhanlal, Basant, Niraj, Chandan, Sanjay and 3-4 others by abusing attacked upon them, at that time, informant and his brother-Guddu were working nearby tubewell and by seeing marpeet they rushed there and saw that the aforesaid persons having lathi, danda, country-made pistols and fatal weapons were committing marpeet. Makkhanlal was exhorting them by saying that they should not be escaped. Makhanlal was beating badly to Vijay Singh, Niraj and Sanjay had country made pistols, Basant had spade and Chandan and other accused had lathi and danda in their hands. Informant and his brother reached the spot and tried to intervene then they also attacked him due to which he received grievous injury. Vijay and Ram Singh fell down on the ground and became unconscious while Nanka saved his life by fleeing away from the spot. Informant informed the police on 100 dial, police came there after sometime, informant and villagers took both of them to the hospital where during treatment, Vijay Singh died and Ram Singh was admitted in a precarious condition. The fatal injury has been caused by co-accused Niraj. He further submits that as per statement of eye-witness Nanka, informant and his brother-Guddu, general allegation of marpeet by lathi, danda and saria has been levelled against the applicant and co-accused Chandan Yadav, Santlal Yadav and Abhishek Yadav, who have been enlarged on bail by the co-ordinate Benches of this Hon'ble Court, vide orders dated 22.10.2021, 8.4.2021 and 14.7.2021 in Criminal Misc.Bail Application Nos.19223 of 2021, 24526 of 2020 and 43927 of 2020, respectively. Applicant's case is at par with the co-accused enlarged on bail, therefore, he claims parity. Applicant has only one criminal history which has been explained in para 22 of the bail application. He further submits that applicant has been falsely implicated in the case. He next submits that applicant is languishing in jail since 12.5.2020. Per contra, learned A.G.A. and learned counsel for the informant opposed the bail prayer of the applicant by contending that after submitting charge-sheet in the matter informant moved an application before the court concerned that statement of witnesses were not recorded by I.O. but he is not aware of what happened in further investigation, therefore, he does not deserve any benevolence. Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties, as per statement of eyewitness, informant and his brother, general allegation of marpeet by lathi, danda and saria levelled against the applicant and co-accused, who have been enlarged on bail, without expressing any opinion on the merit of the case, the applicant is entitled for bail, let applicant Sanjay Yadav involved in the aforesaid case crime be released on bail on his 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 applicant will not tamper with the evidence and pressurize the witnesses during trial. (ii) The applicant shall file an undertaking to the effect that he 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. (iii) The applicant 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 of the Indian Penal Code. (iv) 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. is issued and the applicant fails to appear before the court on the date fixed, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (v) The applicant 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 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. Order Date :- 25.3.2022" 9. Similarly, co-accused Chandan Yadav was enlarged on bail vide order dated 22.10.2021 passed in Criminal Misc. Bail Application No. 19223 of 2021. For ready reference same is extracted hereinunder:- "Heard learned counsel for the applicant, learned counsel for the informant, learned A.G.A. for the State and perused the record. By means of this application, the applicant who is involved in Case Crime No. 111 of 2020, under Sections 147, 148, 149, 323, 304, 504, 307 and 308 I.P.C., P.S. Pipari, district-Kaushambi, is seeking enlargement on bail during the trial. The first information report was lodged by the informant against five named and 3-4 unknown persons, including present accused, alleging there in that on 8.5.2020 at about 4:30 p.m. when the father, brother and nephew of the informant were returning home from their field, the accused persons, who were having lathi-danda, firearm and saria in their hands started assaulted them mercilessly, as a result of which they sustained injuries. It was also alleged that after seeing the incident, the informant and his brother reached at the spot to save their father, brother and nephew, then they were also beaten by the accused persons, causing injuries to them. The injured were taken to the hospital for treatment, where Vijay Singh died during treatment. Learned counsel for the applicant submits that as per the averment made in the first information report all the accused persons are alleged to have assaulted the deceased, however, his postmortem report shows only two fatal injury and it is not known who was the author of the head injuries caused to the deceased. Initially five persons were nominated in the matter and 3-4 persons were shown unknown. Later on four persons were also added during investigation. He next submits that accused Neeraj was having country made pistol in his hand, other co-accused Basant was armed with spade and the present accused and other co- accused were armed with danda. No specific role has been assigned to them. In view of the above possibility of the prosecution case being exaggerated and false implication of several innocent persons in the present case cannot be ruled out. He also submits that other co-accused Kundan Singh and Ramlakhan have already been enlarged on bail by another Bench of this Court vide order dated 10.2.2021 respectively passed in Criminal Misc. Bail Application nos. 34220 of 2020 and 34243 of 2020. He lastly submits that the applicant, who is in jail since 12.5.2020 and has no criminal antecedents to his credit is entitled to be enlarged on bail during pendency of the trial. Sri A.C. Tiwari, learned counsel for the informant has vehemently opposed the prayer for bail and submitted that the incident has taken place in bought daylight and the accused persons had mercilessly beaten the complainant side, in which victim Vijay Singh has died and two other persons received injuries. Keeping in view the nature of the offence, evidence, complicity of the accused, severity of the punishment, submissions of learned counsel for the parties, considering that initially five persons were nominated in the matter and 3-4 persons were shown unknown and later on four persons were also added during investigation, it seems to be quite strange when unknown persons were living in the same village as to why earlier they were not named in the FIR, considering that the applicant was having danda in his hand and no overt act of any kind has been attributed to him, considering the facts and circumstances of the case and without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be enlarged on bail during the pendency of the trial. Let the applicant, Chandan Yadav be released on bail in the aforesaid case on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- (a) The applicant shall attend the court according to the conditions of the bond executed by him. (b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted. In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by learned counsel for the applicant along with a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official. 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 :- 22.10.2021" 10. During course of investigation complicity of other not named accused also came to surface in the crime in question i.e. Abhishek Yadav, Ram Lakhan, Sant Lal Yadav and Kundan Lal, who have also been enlarged on bail. Copies of bail orders of aforementioned four co-accused are on record from page 34 to 42 of the paper book. 11. On the basis of above, learned counsel for applicant submits that criminality alleged against applicant and aforementioned named co-accused, who have been enlarged on bail is common. As such, same is interlinked and intertwined and therefore, incapable of separation or segregation. However, irrespective of above, aforementioned two named accused have been enlarged on bail. It is then contended that case of present applicant is similar and identical to that of co-accused Sanjay Yadav and Chandan Yadav, who have already been enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicant could be distinguished from aforementioned co-accused, who have already been enlarged on bail so as to deny him bail. It is then contended that in the F.I.R., applicant has been nominated as a named accused but the only role assigned to applicant is that he was in a party to the unlawful assembly being armed with a spade (Phawada). The recital contained in the F.I.R. clearly goes to show that injury sustained by the deceased was committed by an iron rod. It is thus urged that in view of above and for the facts and reasons recorded in aforesaid bail order of co-accused, applicant is also liable to be enlarged on bail by this Court on the ground of parity also. It is also contended that applicant is in jail since 19.07.2020. As such, he has undergone two years and few months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. The criminal history of the applicant has also been sufficiently explained. 12. Per contra, the learned A.G.A. for State and the learned counsel for first informant have vehemently opposed the second application for bail. They jointly submit that deceased had died on account of fatal head injury sustained by him. In the opinion of autopsy surgeon injury caused to the deceased was by a hard and blunt object. It can be easily inferred that injury sustained by deceased was on account of the implements in the hand of applicant also. Therefore, he does not deserve any indulgence by this Court. However, he could not dispute the legal and factual submissions urged by learned counsel for applicant. 13. In rejoinder, the learned counsel for applicant has invited the attention of Court to the F.I.R. as well as the statements of witnesses examined under Section 161 Cr.P.C. to demonstrate that general role has been assigned to each of the named accused. 14. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that since co-accused Sanjay Yadav and Chandan Yadav, who were similarly situate like present applicant, have already been enlarged on bail, there is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforementioned named as well as charge- sheeted co-accused, who have already been enlarged on bail, no specific role assigned to the applicant in the F.I.R., only general role has been assigned to applicant in the statement of witnesses under Sections 161 Cr.P.C. but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 15. Accordingly, present application for bail is allowed. 16. Let the applicant-Basant @ Basant Lal involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence. (ii) 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) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever. 17. 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 of applicant and send him to prison Order Date :- 20.12.2022 YK Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad
Arguments
4. Learned counsel for the applicant submitted that there is no injury either on deceased or on injured which could be caused by the 'Phawda', weapon allegedly assigned to the applicant. The specific role of causing fatal injury to deceased is on co-accused Makhan Lal. He further pointed out that the immediate cause of death of deceased was 'Coma' due to ante mortem injuries to brain. The injured had suffered transversed lacerated wound possibly caused by hard and blunt object. There is no injury which could be attributed to the applicant. No recovery was made from the possession of the applicant. The applicant has no other reported criminal antecedent and charge-sheet has already been filed against him. Applicant is languishing in jail since 19.7.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial. 5. Per contra, learned A.G.A. has vehemently opposed the bail application and submitted that the applicant along with other co- accused have formed an unlawful assembly and in furtherance of their common intention ambushed persons from complainant side with deadly weapons and due to assault, one person died and others were injured. Applicant and co-accused have caused grievous injuries, therefore, applicant is not entitled to bail. 6 (A). Law on bail is well settled that 'Bail is a rule and jail is an 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