High Court
Case Details
Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31791 of 2021 Applicant :- Pawan Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Sarvesh Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Pachori,J.
Legal Reasoning
After considering the facts of the present case it prima facie appears that; (a) F.I.R. has been Mangal Singh, Chhunna Singh, Bhura Singh and two to three unknown persons; (b) first statement of Gulab was recorded on 21.03.2020 after four days the alleged incident. The applicant is not named in the F.I.R. and his name came into light in the Second Statement of Gulab recorded on 08.06.2020 after about three months of the alleged incident on the basis of suspicion ; (c) Charge-sheet has been submitted against the applicant only but exonerated four named accused persons; (d) no incriminating article has been recovered from the possession or on the pointing out of the applicant and alleged recovery of bricks and a bed sheet which were alleged to have been recovered at the instance of the applicant without complying with the mandatory provision of section 100 Cr.P.C. (e) the first informant has filed a criminal writ being Criminal Misc. Writ Petition No. 7045 of 2020 stating therein that charge-sheet has been submitted against a wrong person without making proper investigation of the matter. It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with. Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed. Let applicant, Pawan Kumar 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 subject to the following conditions: (i) 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. (ii) The applicant shall not pressurize/intimidate the prosecution witnesses. (iii) 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 of Cr.P.C. (iv) 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 the trial court. (v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. (vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. 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 :- 25.3.2022 aks Digitally signed by ANIL KUMAR SRIVASTAVA Date: 2022.03.28 16:46:44 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Heard Shri Sarvesh, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record. The present bail application has been filed on behalf of applicant Pawan Kumar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 38 of 2020 for offence punishable under Section 302, 201 of the Indian Penal Code, registered at Police Station Fajalgang, District Kanpur Nagar, during pendency of the trial, after rejecting the bail application of the applicant by the Sessions Judge, Kanpur Nagar vide order dated 25.02.2021. Brief facts of the case are that the First Information Report dated 17.03.2020 has been lodged against Mangal Singh, Chhunna Singh, Bhura Singh and two to three unknown persons stating therein that on 16.03.2020 at about 10.30 PM, an information was given to the first informant regarding the death of his brother, whose body was found lying and hands and legs of the aforesaid body were tied. His brother has been murdered by Mangal Singh, Chhunna Singh, Bhura Singh and two to three unknown persons in S.P. foundry Factory, where his brother was working as Security Guard. It is also alleged in the F.I.R. that real brother (Arvind Singh) of the informant was murdered by co-accused Mangal Singh, who had been convicted for life imprisonment by the Sessions Court against which Criminal Appeal has been preferred by the accused persons which is pending before this Court. The first informant is trying to get the said appeal listed for hearing and pressure was mounted upon the first informant not to get the appeal listed for hearing. The Criminal appeal was lastly listed on 14.02.2020. Before lodging the first information report, inquest of the deceased has been conducted on 17.03.2020 at 1.15 P.M. on the place of occurrence on the basis of information of the first informant, postmortem of the dead body of the deceased was also conducted on 17.03.2020 at 1.45 P.M. As per inquest report as well as post mortem report, 12 injuries (Incised, lacerated, abrasion, contusion and stab wound) were found on the person of the deceased. After recording the statement of of the first informant and independent witnesses, Gulab Singh and Sandeep Kumar and Prem Singh under section 161 Cr.P.C. and completing the investigation, charge sheet has been filed against the applicant on 28.07.2020 but exonerated four named persons including the co-accused Mangal Singh. The applicant was arrested on 20.06.2020. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that first statement of Gulab was recorded on 21.03.2020 after four days the alleged incident. The applicant is not named in the F.I.R. and applicant's name has surfaced for the first time in the Second Statement of Gulab which was recorded on 08.06.2020 after about three months of the alleged incident on the basis of suspicion. It is further submitted that no evidence has been collected during investigation to connect the applicant to this case. It is further submitted that no incriminating article has been recovered from the possession or on the pointing out of the applicant and alleged recovery of bricks and a bed sheet which were alleged to have been recovered at the instance of the applicant without complying with the mandatory provision of section 100 Cr.P.C. It is further submitted that the first informant has filed a criminal writ being Criminal Misc. Writ Petition No. 7045 of 2020 stating therein that charge-sheet has been submitted against a wrong person without making proper investigation of the matter. He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court. Per contra, learned AGA has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.