High Court

Legal Reasoning

Case :- CRIMINAL APPEAL No. - 4742 of 2021 Appellant :- Dilip Gupta Respondent :- State of U.P. and Another Counsel for Appellant :- Sunil Kumar Srivastava,Padmaker Pandey Counsel for Respondent :- G.A.,Mohd. Aqueel Khan Hon'ble Rahul Chaturvedi,J. Order-sheet shows that despite the stop order dated 17.2.2022, learned counsel for opposite party no.2 has not filed any counter affidavit. The Court is not ready to given further time to file counter affidavit. The matter is pending since October, 2021 and the appellant is in jail since September, 2021, it would be unfair to give long rope to the learned counsel for opposite party for the said objective. Heard Shri Padmaker Pandey, learned counsel for the appellant, Mohd. Aqueel Khan, learned counsel for opposite party no.2 as well as learned A.G.A for the State and perused the record. 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 21.9.2021 passed by the learned Special Judge SC/ST (Prevention of Atrocities) Act), Kanpur Dehat while rejecting the Bail Application No.3130 of 2021 arising out of Case Crime No.129 of 2021, under Sections 147, 148, 323, 325, 504, 364, 511 I.P.C. and Section 3(2)Dha of the S.C./S.T. Act, Police Station- Babupurwa, District-Kanpur Nagar. Contention raised by learned counsel for the appellant is that both the contesting parties are roadside vendors of vegetables and some street food and there is quarrel between them with regard to parking their respective wheelbarrows (thela-gadi). In this regard an N.C.R. was registered by the appellant against the son of opposite party no.2 Rohit Sonkar on 9.7.2021 u/s 323, 504 I.P.C., whereby the appellant has received simple injuries; abraded contusion and lacerations over his person. It is contended by learned counsel that on 10.7.2021 a compromise was arrived at between the parties at the police station, but on the same day the appellant is said to have assaulted upon Rohit Sonkar and an F.I.R. to this effect was lodged on 13.7.2021 against four named accused persons including the appellant and four other unknown persons, with the allegation that all named accused persons have assaulted with knife, iron rod, iron chain and country-made-firearm upon Rohit Sonkar and tried to kidnap him. In this transaction as many as three persons sustained injuries. A general role of assault has been assigned to all accused persons. It is further contended by learned counsel for the appellant that the accused persons have hurled filthy abuses in a derogatory way regarding their caste name. Contention is that the appellant was not aware about the caste of opposite party no.2, and therefore, there is no question of application of the provisions of SC/ST Act. Learned counsel for the appellant has drawn attention of the Court to the statements in injured u/s 161 Cr.P.C. and their injuries reports, indicating that they have received simple injuries over their persons. The appellant is in jail since 04.09.2021. Per contra, learned counsel for the opposite party no.2 vehemently opposed the prayer for bail by making a mention that the appellant is a muscleman and having a chequered past and he along with other co-accused persons has become aggressor over the injured and three others causing serious injuries to them. The appellant wants that he should have maintained a monopoly over the area and no other vendor should park his wheelbarrow over there. From the perusal of the statement of the informant recorded u/s 161 Cr.P.C. it is clear that she is not an eye-witness and she states that the appellant was carrying dagger with him. I have also perused the injury reports of injured. Surprisingly, all of the injured persons have sustained simple injuries over their persons. A general role has been attributed to all the assailants. There is no averment to the fact that, the appellant was knowing the caste name of the victim prior in time and even there was no occasion or reason to take the name of victim by caste in derogatory way. 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 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-Dilip Gupta, 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 21.9.2021 passed by the learned Special Judge SC/ST (Prevention of Atrocities) Act), Kanpur Dehat, is hereby set aside. Order Date :- 3.3.2022 M. Kumar Digitally signed by MANISH KUMAR Date: 2022.03.05 10:34:02 IST Reason: Location: High Court of Judicature at Allahabad