High Court · 2022

Heard Sri Desh Ratan Chaudhary, learned counsel for the applicant, Sri Hemant Kumar Singh, learned counsel for the informant as well as 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.121 of 2021, under Sections 147, 148, 149, 307, 323, 506, 302 IPC, Police Station-Baldev, District-Mathura is seeking enlargement on bail during the trial. The applicant is languishing in jail since 11.06.2021. Contention raised by the counsel for the applicant is that though the applicant is named in the FIR but the role attributed is that he was armed with lathi and the role of giving fatal firearm injury is attributed to co- accued Jitendra @ Jitu. The deceased has sustained one gun shot injury. There is no parallel or compatibility in between the weapon attributed to the applicant and the injury sustained by the deceased. There is one another injured person who has sustained pallet injury on his leg and which cannot be attributed to the applicant. The applicant has got no criminal antecedent. It is further submitted that the co-accused Jai Pal has already been admitted on bail by the coordinate Bench of this court vide order dated 22.10.2021 in Crl. Misc. Bail Application No. 40879 of 2021. Per contra Sri Hemant Kumar Singh, learned counsel for the complainant has relied upon the judgement of Hon'ble Apex Court in the case of Kumer Singh Vs. State of Rajasthan & Anr. decided on 20th July, 2021 in Crl. Appeal No. 571 of 2021 and learned counsel has emphasized upon para-14 of the judgement, which is reproduced here-in-below:- read with Section 149 "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 307 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,......." Sections 302 Learned counsel for the appellant has further relied upon the judgement of Hon'ble Apex Court in the case of Allauddin Mian & othes Sharif Mian and another Vs. State of Bihar, reported in 1989 AIR 1456, whereby while assessing the merit of Section 149 IPC, the Hon'ble Apex Court has opined thus:- . I.P.C Section 149 "(3) ., creates a. specific offence. Since this section imposes a constructive penal liability, it must be strictly construed. [509G] 500 section 149 (4) It is not the intention of the legislature in enacting 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 . " Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail. Let the applicant, Raj Kumar, be released on bail in the aforesaid case crime number 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) THE APPLICANT/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) THE APPLICANT/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 APPLICANT/APPLICANTS IS/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 HIS/HER/THEIR 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/APPLICANTS. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant/applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:

1. The applicant/applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is/are restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.

2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.

4. 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 :- 5.3.2022 Abhishek Sri. RANJAN SRIVASTAVA Reason: Location: High Court of Judicature at Allahabad