High Court
Case Details
Neutral Citation No. - 2025:AHC:100821 Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12273 of 2025 Applicant :- Mohd. Nadeem Opposite Party :- State of U.P. Counsel for Applicant :- Rajeev Goswami Counsel for Opposite Party :- G.A.
Legal Reasoning
Hon'ble Ashutosh Srivastava,J. 1. Heard Sri Rajeev Goswami, learned counsel for the applicant, Sri Roopak Chaubey, learned A.G.A. for the State and perused the material on records. 2. The bail application under Section 483 BNSS at the instance of applicant Mohd. Nadeem son of Rasheed has been filed seeking enlargement of bail in Case Crime No. 333 of 2024, under Sections 191 (2), 190, 115 (2), 352, 221, 132, 121 (1), 121 (2), 109 (1), 125, 309 (1), 223 (b), 191 (3) BNS and Section 25 (1-AAA), 25 (1- AB) Arms Act, Police Station Kotwali, District Sambhal. The bail application of the applicant in the court below was rejected by the learned Additional Sessions Judge, Sambhal at Chandauli, vide order dated 28.02.2025 and the applicant is languishing in jail since 24.11.2024. 3. Learned counsel for the applicant vehemently submits that the applicant is entirely innocent and has been falsely implicated in this very case crime number for ulterior motive. Learned counsel for the applicant submits that the genesis of the FIR giving rise to the present case crime number is a civil suit being Civil Suit No. 182 of 2024 filed before the Civil Judge (Senior Division) at Chandausi, District Sambhal, in which the learned Civil Judge (Senior Division) vide his order dated 19.11.2024 ordered for a survey to be carried out of the Jama Masjid and a report be submitted by 29.11.2024. In compliance of the said order, the District as also the police administration geared up to facilitate the survey and the same was carried out between 6:00 p.m. to 7:30 p.m. Due to lack of adequate light in the premises, presence of several persons inside the premises and mob outside the premises the survey could not be carried out to the satisfaction of the Court Commissioner and a request was made by the Court Commissioner for continuation of the survey the next day. The remaining survey was scheduled for 24.11.2024 from 7:00 a.m. onwards. On 24.11.2024 several miscreants gathered on the spot to protest the survey. The protest took a voilant turn and several persons assembled unlawfully at different places to thwart the survey process by preventing the public servant and police personnel from discharging their public duties and also indulging in assault, stone pelting as well as firing resulting in injuries to police personal and damage to their vehicles. A situation of anarchy and panic in the society was created. The FIR giving rise to the Case Crime No. 333 of 2024, under Sections 191 (2), 190, 115 (2), 352, 221, 132, 121 (1), 121 (2), 109 (1), 125, 309 (4), 223 (b), 191 (3) BNS and Section 25 (1-AAA), 25 (1-B) Arms Act, P.S. Kotwali Sambhal, District Sambhal was lodged against 7 named persons and 800-900 unknown persons. 67 accused persons were also identified from the CCTV footage, videos and photographs of the occurrence taken by mobile phones, from Drones of the videographers present along with the survey team. It is further submitted by learned counsel for the applicant that the applicant was not named in the FIR, nothing incriminating was found from the possession of the applicant or his pointing out. The applicant was not put up for test identification parade nor was identified from the CCTV, mobile and Drone video footage. The name of the applicant has surfaced in the confessional statement of the accused persons before the police while in custody. The applicant has no criminal antecedent and has also been implicated in Case Crime Nos. 334 of 2024, 336 of 2024 and 337 of 2024, P.S. Kotwali Sambhal which arise from the same alleged occurrence dated 24.11.2024, with a view to enhance the number of cases against the applicant. Charge sheet has been submitted in the case and there is no credible evidence or material against the applicant except the alleged confessional statement of the co-accused persons which is not admissible against the applicant in view of Section 23 of Bhartiya Sakshya Adhiniyam. It is submitted that the applicant deserves to be enlarged on bail and undertakes not to misuse the liberty of bail and shall cooperate with the investigation. Hence, bail has been prayed for. 4. Per contra, learned A.G.A. Sri Roopak Chaubey in opposition to the bail plea submits that the applicant cannot be assumed to be innocent at the pre trial stage and as such does not deserve any interference. The applicant along with co-accused persons was involved in unlawful activities of stone pelting upon police personnel, abusing them and also snatching their weapons. The accused persons tried to snatch the service pistol of the first informant i.e. Sub Inspector Sanjeev Kumar of P.S Kotwali Sambhal and succeeded in looting the magazines containing 10 rounds of 9 mm cartridges, two bags of tear smoke shells containing 29 tear smoke shells from police constable Kamal Kumar. Bag of Constable Pankaj Kumar was also looted by the accused persons containing 25 blank cartridges and 25 rubber bullets. A bag of ammunition containing 15 rounds of 12 bore cartridges was also looted from constable Rajpal Singh. 5 police personnel received injuries due to assault made by the accused persons including the applicant. Stolen ammunition was recovered from the accused persons during investigation. It is thus prayed that the applicant does not deserve to be released on bail and the bail application warrants dismissal. 5. I have heard the learned counsel for the parties and have perused the record. 6. The Apex Copurt in the case of Dhirubhai Bhailalbhai Chauhan and another vs. State of Gujrat & others along with the case of Kiritbhai Manibhai Patel & others vs. State of Gujrat Crl. Appeal No. 816 of 2016 and Crl. Appeal No. 817 of 2016 while dealing with a case of unlawful assembly and group clashes in paras 13 and 14 observed as under:- "13. In cases of group clashes where a large number of persons are involved, an onerous duty is cast upon the courts to ensure that no innocent bystander is convicted and deprived of his liberty. In such type of cases, the courts must be circumspect and reluctant to rely upon the testimony of witnesses who make general statements without specific reference to the accused, or the role played by him. This is so, because very often, particularly when the scene of crime is a public place, out of curiosity, persons step out of their home to witness as to what is happening around. Such persons are no more than bystander though, to a witness, they may appear to be a part of the unlawful assembly. Thus, as a rule of caution and not a rule of law, where the evidence on record establishes the fact that a large number of persons were present, it may be safe to convict only those persons against whom overt act is alleged. At times, in such cases, as a rule of caution and not a rule of law, the courts have adopted a plurality test, that is, the conviction could be sustained only if it is supported by a certain number of witnesses who give a consistent account of the incident. 14. There may, however, be a situation where a crowd of assailants, who are members of an unlawful assembly, proceeds to commit murder in pursuance of the common object of that assembly. In such a case, any person who is a member of that unlawful assembly is equally liable even though no specific overt act of assault is attributed to him. Otherwise also, where the assailants are large in number it may not be possible for witnesses to describe accurately the part played by each one of them. Besides, if a large crowd of persons armed with weapons assault the intended victims, it may not be necessary that all of them must take part in the actual assault. Therefore, in a situation like this, what is important for the Court is to determine whether the accused put on trial was a part of the unlawful assembly or just a bystander. Such determination is inferential, based on the proven facts of the case. Though it is not feasible to exhaustively lay down the list of circumstances from which an inference regarding the accused being part of the unlawful assembly be drawn, the Courts have generally held the accused vicariously liable, with the aid of Section 149 of the IPC, inter alia, (a) where he had proceeded to the scene of crime along with other members of the assembly carrying arms or instruments which could serve the object of the assembly; and (b) where he had participated in any manner in the events which serve the common object of the assembly." 7. Considering the submissions advanced by learned counsel for the parties and taking note of the fact that the applicant is not named in the FIR giving rise to the present case crime number, only general allegations have been levelled against the applicant on the strength of confessional statement of the co-accused persons, no recovery of any incriminating material has been made from the applicant on his pointing out, the applicant has not been identified from the CCTV footage or video footage taken by the Police Personnel, the applicant having no criminal antecedents, the Court is of the opinion that it is a fit case to release the applicant on bail. 8. Accordingly, the bail application is allowed. 9. Let the accused-applicant, Mohd. Nadeem, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions: 1. The applicant will not tamper with the evidence. 2. The applicant will not indulge in any criminal activity. 3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial. 4. The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted through counsel by the court concerned. 10. In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail. Order Date :- 19.5.2025 v.k.updh. Digitally signed by :- VINOD KUMAR UPADHYAY High Court of Judicature at Allahabad