High Court
Case Details
Neutral Citation No. - 2023:AHC:185515 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36442 of 2021 Applicant :- Govind Chauhan Opposite Party :- State of U.P. Counsel for Applicant :- Akhilesh Kumar Mishra,Ashish Pandey,Ganesh Shanker Srivastava Counsel for Opposite Party :- G.A.,Dhirendra Kumar Verma,Renu Swarnkar With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37783 of 2021
Legal Reasoning
Applicant :- Sonu Sahani Opposite Party :- State of U.P. Counsel for Applicant :- Akhilesh Kumar Mishra,Ashish Pandey,Ganesh Shanker Srivastava Counsel for Opposite Party :- G.A.,Dhirendra Kumar Verma,Renu Swarnkar Hon'ble Rajeev Misra,J. Heard Mr. Ashish Pandey along with Mr. Randheer Jain, the learned counsel for applicants and the learned A.G.A. for State. First informant is represented by Mr. Dhirendra Kumar Verma and Ms. Renu Swarnkar but they are not present. Learned counsel for applicants has filed afÏdavit of service in both the bail applications regarding service of notice upon the learned counsel representing first informant in Court today, which is taken on record. These applications for bail have been filed by applicants Govind Chauhan and Sonu Sahani seeking their enlargement on bail in Case Crime No.08 of 2021, under Sections 34, 363, 376-D, 302, 201 IPC, Section 5/6 Pocso Act and Section 7 Criminal Law Amendment Act, police station Purandarpur, district Mahrajganj, during the pendency of trial. Perused the record. Record shows that in respect of an incident which is alleged to have occurred on 18.01.2021, a prompt FIR dated 18.01.2021 was lodged by first informant, namely, Smt. Seeta Devi (mother of the prosecutrix) and was registered as Case Crime No.0008 of 2021, under Section 363 IPC, police station Purandarpur, district Mahrajganj. In the aforesaid FIR, one un- known person has been arraigned as solitary accused. The gravamen of the allegations made in the F.I.R. is to the effect that daughter of the first informant had gone from home to Khalikgarh Tola to take fodder on 18.01.2021 in the evening. However, since then her whereabouts could not be located in spite of a hectic search having been made. However, her cycle and both sleepers were recovered. Learned counsel for applicants submits that applicants are innocent. The applicants are not named in the FIR but they are charge-sheeted accused, inasmuch as, the charge-sheet has been submitted against the applicants and other co- accused on 28.02.2021. It is next contended that as per the said charge-sheet, six persons, namely, Veeru @ Vivek; Govind; Sonu; Ramnayan Rajbhar; Pankaj Sahni and Pawan Vishwakarma have been charge-sheeted under Sections 34, 363, 376-D, 302, 201 IPC, Section 5/6 Pocso Act and Section 7 Criminal Law Amendment Act, police station Purandarpur, district Mahrajganj. It is then contended by the learned counsel for applicants that charge-sheeted co-accused Ramnayan Rajbhar has been enlarged on bail by this Court vide order dated 13.07.2023 passed in Criminal Misc. Bail Application No.23394 of 2023 (Ramnayan Rajbhar Vs. State of U.P. and 3 others). For ready reference, the same is reproduced herein-under :- "1. Supplementary affidavit filed today on behalf of the applicant, is taken on record. 2. Dr. S.B. Maurya, learned AGA apprised the Court that according to his instructions, notice has been served to the informant in the month of May, 2023. Despite service of notice, none appeared on behalf of the informant. 3. Heard Sri Pradeep Kumar, learned counsel for the applicant and Dr. S. B. Maurya, learned AGA-I for the State-respondent. 4. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 8 of 2021, under Sections 34, 363, 376-D, 302, 201 IPC and 5/6 POCSO Act and 7 Crl. Law Amendment Act, Police Station Puranderpur, District Maharajganj, during pendency of the trial in the court below. 5. FIR of the present case was lodged against one unknown person and according to the FIR on 18.1.2021 in the evening when daughter of the informant aged about 12 years was passing through a forest then some unknown persons kidnapped her. It is further mentioned in the FIR that the incident has been witnessed by one Shobha, a villager. 6. Learned counsel for the applicant submitted that FIR of the present was lodged under sections 363 IPC against unknown persons but next day when dead body of the deceased was recovered then case was converted under sections 302, 376D, 201 IPC. 7. He further submitted that during investigation when the statement of two witnesses Sandeep and Mohan Lal were recorded then they stated that before the alleged incident of kidnapping, they witnessed the applicant and five others nearby place of incident and on the basis of their statements, it is alleged that applicant and five other accused persons were arrested and they confessed their guilt and according to the prosecution, on their pointing out, their briefs were recovered from a bush. 8. He further submitted that except the above noted evidence, there is no other evidence against the applicant on record. 9. He further submitted that from perusal of the recovery memo, which has been annexed alongwith the instant bail application, it appears that on the alleged brief of the applicant there was no blood stain mark and therefore, only evidence against the applicant is of his confessional statement. 10. He further submitted that applicant is having no criminal history and he is in jail in the present matter since 22.1.2021, therefore, he may be released on bail. 11. Per contra, learned AGA opposed the prayer for bail but could not dispute the arguments on fact advanced by learned counsel for the applicant. 12. I have heard learned counsel for the parties and perused the record of the case. 13. Although in the present matter, it appears that a girl aged about 12 years was brutally murdered after committing rape but from the record it reflects that only evidence against the applicant is his confessional statement and confessional statement of other accused persons and except this, there is no other evidence against the applicant on record, therefore, in my view, applicant is entitled to be released on bail. 14. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed. 15. Let the applicant-Ramnayan Rajbhar, be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity. 16. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant. 17. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial." Another co-accused Veeru Chauhan has been enlarged on bail by this Court vide order dated 26.07.2023 passed in Criminal Misc. Bail Application No.22682 of 2023 (Veeru Chauhan Vs. State of U.P. and 3 others). For ready reference, the same is reproduced herein-under :- "Heard learned counsel for the applicant and learned A.G.A for the State. The submission is that co-accused, Ramnayan Rajbhar has already been enlarged on bail vide Criminal Misc. Bail Application No. 23394 of 2023 on 13.7.2023 and the case of the applicant stands on identical footing, hence the applicant is also entitled for bail for the reasons given in bail application of co- accused on the ground of parity. The applicant is in jail since 19.1.2021. On the other hand learned A.G.A has opposed the prayer for bail. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant, Veeru Chauhan, involved in Case Crime No. 8 of 2021, under Sections 34,363,376DB,302,201 IPC,section 5/6 POCSO Act and section 7 Criminal Law Amendment Act Police Station- Purandarpur District- Maharajganj, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. 1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial. 2. The applicant shall cooperate in the trial sincerely without seeking any adjournment. 3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. 4. That 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; 5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant. 6. 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail." Another co-accused Pankaj Sahni has been enlarged on bail by this Court vide order dated 07.08.2023 passed in Criminal Misc. Bail Application No.22800 of 2023 (Pankaj Sahni Vs. State of U.P. and 3 others). For ready reference, the same is reproduced herein-under :- "1. Heard learned counsel for the applicant, learned A.G.A for the State and perused the record. 2. It has been argued by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that similarly situated co-accused namely, Ramnayan Rajbhar and Veeru Chauhan, have already been enlarged on bail by co-ordinate Benches of this Court vide order dated 13.07.2023 and 26.07.2023 passed in Criminal Misc. Bail Application Nos. 23394 of 2023 and 22682 of 2023, copy of which orders have been produced before this Court and is taken on record. It is thus contended that the applicant is also entitled for bail on the ground of parity. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 19.01.2021 having no criminal history. 3. Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail he will misuse the liberty of bail, however, could not dispute the submissions of learned counsel for the applicant with regard to parity. 4. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence, and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail. Hence the bail application is allowed. 5. Let applicant Pankaj Sahni involved in Case Crime No. 08 of 2021 under Sections 34, 363, 376D, 302, 201 I.P.C., Section 5/6 of POCSO Act and Section 7 of Criminal Law Amendment Act, Police Station Purandarpur, District Maharajganj, be released on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:- I. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 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. III. In case, the applicant misuses the liberty of bail 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 in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. IV. 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 6. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted." Learned counsel for the applicants submits that as per the opinion of the autopsy surgeon, who conducted the autopsy of body of the deceased, the cause of death of the deceased was ante-mortem strangulation. However, as per the material collected by the Investigating OfÏcer, it is not crystal clear as to who committed the alleged act of strangulating the deceased. As such, general role has been assigned to all the accused. He further contended that the complicity of applicant in the crime in question is alleged on the basis of the statement of two witnesses examined under Section 161 CrPC, namely, Mohan Lal Yadav and Sandeep Sahni, who have stated that accused-applicants were seen in the vicinity of the place of occurrence. Referring to the judgement of the Supreme Court in Jaswant Gir Vs. State of Punjab (2005) 12 SCC 438, he submits that no conviction of an accused is possible simply on the basis of last seen. No strong motive for committing the crime in question has emerged either against the applicants. The present case is a case of circumstantial evidence, therefore there is no eye-witness of the occurrence. Referring to the judgement of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, learned counsel for the applicants contends that complicity of an accused in a case based on circumstantial evidence is to be judged in the light of parameters laid down by the Apex Court in aforementioned judgement. However, up to this stage, none of the parameters laid down in the aforementioned judgement are satisfied against the present applicants. No other incriminating circumstance pointing out the guilt of the applicants has yet been discovered by the Investigating OfÏcer. According to the learned counsel for applicants the case of the present applicants is similar and identical to aforementioned charge-sheeted but bailed out co-accused. There is no such distinguishing feature on the basis of which the case of the present applicants can be so distinguished from the case of aforementioned charge-sheeted but bailed out co-accused so as to deny bail to the applicants. He, therefore, contends that in view of above and for the facts and reasons recorded in the bail orders of aforementioned co- accused, referred to above, the present applicants are also liable to be enlarged on bail. Even otherwise, the applicants are men of clean antecedents having no criminal history to their credit except the present one. The proceedings of Gangster Act have been initiated against the applicants subsequent to the FIR giving rise to the present application for bail. The police report under Section 173 (2) CrPC has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. However, upto this stage no such circumstance has emerged necessitating the custodial arrest of the applicants during the pendency of trial. Applicants are in jail since 22.01.2021. As such, they have undergone more than two years and eight months of incarceration. To buttress his submission, he has relied upon the judgement of Supreme Court in Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra and another 2023 Live Law (SC) 373 (paragraph 5). On the cumulative strength of above, it is thus urged that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicants are charge-sheeted accused therefore, they do not deserve any indulgence by this Court. The criminality committed by the charge-sheeted accused is joint and common therefore, the same is incapable of being separated or segregated. As such, no exception can be carved out in the case of present applicants. He, therefore, contends that no sympathy be shown by this Court in favour of applicants. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage. Having heard the learned counsel for applicants, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that similarly situate and circumstanced charge-sheeted co- accused have already been enlarged on bail by this Court, learned A.G.A. could not point out any such distinguishing feature to distinguish the case of the present applicants with the case of aforementioned charge-sheeted bailed out co- accused so as to deny bail to the present applicants, the present case is a case of circumstantial evidence therefore there is no eye-witness of the occurrence, the guilt of an accused in a case based on circumstantial evidence is to be judged in accordance with the parameters laid down by the Apex Court in Sharad Birdhichand Sarda (supra), however, up to this stage none of the parameters laid down in the aforementioned judgement are prima facie satisfied against the present applicants, the only evidence that has emerged against the applicants is that of last seen, however in view of the law laid down by the Apex Court in Jaswant Gir (supra), no conviction of an accused can be maintained only on the basis of last seen, the criminality assigned to all the charge-sheeted accused is common, the cause of death of the deceased as opined by the autopsy surgeon is strangulation, however the author of the said act of strangulation has neither been specified in the FIR nor identified in the statement of the witnesses recorded under Section 161 CrPC, the clean antecedents of the applicants, the proceedings under Gangsters Act have been initiated against the applicants subsequent to the FIR giving rise to the present application for bail, the period of incarceration undergone, the police report under Section 173 (2) CrPC i.e. charge-sheet having been filed therefore the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized, however up to this stage, learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of the applicants during the proceeding of trial, the judgement of the Supreme Court in Sumit Subhashchandra Gangwal and another (supra), but without making any comments on the merits of the case, the applicants have made out a case for bail. Accordingly, the bail applications are allowed. Let the applicants Govind Chauhan and Sonu Sahni, involved in aforesaid case crime number, be released on bail on their furnishing personal bond with 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 applicants shall file an undertaking to the effect that they 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. (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 sufÏcient cause, the trial court may proceed against them under section 229-A I.P.C. (iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if 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 I.P.C. (iv) The applicants 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 applicants is deliberate or without sufÏcient 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. (v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the conditions mentioned above. Order Date :- 25.9.2023. Rks. Digitally signed by :- RAJESH KUMAR SINGH High Court of Judicature at Allahabad