High Court
Case Details
Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54251 of 2022 Applicant :- Ashar Khan Opposite Party :- State of U.P. Counsel for Applicant :- Sadrul Islam Jafri,Sr. Advocate,Tariq Maqbool Khan Counsel for Opposite Party :- G.A.,Prakash Chandra Srivastava Hon'ble Saurabh Shyam Shamshery,J.
Legal Reasoning
(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail. (D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors. (See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559) 7. In the present case number of accused persons formed an unlawful assembly and assaulted victim who died. Deceased has suffered four ante mortem injuries. Presence of applicant remained consistent in FIR and statements recorded during investigation. He was seen in many CCTV footages. 8. Argument of learned Senior Advocate that corresponding to number of accused persons, i.e., 12, and number of ante mortem injuries, i.e., four, it may be a case of false implication and exaggeration and that name of some of the accused were disclosed later on, may be prima facie a good argument, however, Court cannot ignore that presence of applicant remained consistent since FIR was lodged and he was seen in various CCTV footages and as per Section 147 IPC, a member of unlawful assembly will also have vicarious liability even he has not used force. In these circumstances, I do not find any reason for grant of bail. 9. Application is accordingly dismissed. Order Date :- 21.3.2023 AK Digitally signed by :- AWADESH KUMAR High Court of Judicature at Allahabad
Arguments
1. Heard Sri N.I. Jafri, learned Senior Advocate assisted by Sri Tarik Maqbool Khan, learned counsel for applicant, Sri Paritosh Malviya, learned AGA for State and Sri P.C. Srivastava, Advocate for Informant. 2. Applicant-Ashar Khan has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 186 of 2022, under Sections 147, 148, 302, 506, 34 IPC, Police Station Gorakhnath, District Gorakhpur, after rejection of his bail application vide order dated 02.11.2022 passed by Additional Sessions Judge, Court No. 1, Gorakhpur. 3. In the present case FIR was lodged against seven named persons including applicant that they formed an unlawful assembly and assaulted and caused death of deceased. Later on name of five co-accused were also disclosed on the basis of CCTV footage and charge sheet was filed against 12 persons including applicant. According to post mortem report four ante mortem injuries were caused to deceased, out of which three wounds were on skull and immediate cause of death was comma due to ante mortem head injuries. 4. Learned Senior Advocate appearing for applicant submits that Informant has declared himself to be an eye witness and named only seven persons at the time of lodging FIR even after going through CCTV footage. Therefore, on the basis of subsequent events wherein name of five other persons were disclosed, it appears to be a false case even against applicant. Deceased has suffered four ante mortem injuries whereas total accused are 12 and since specific role has not been assigned to any accused persons, the allegations become vague and general. Learned Senior Advocate further submits that even in CCTV footage occurrence is not seen. Only allegation against applicant is that he was running away alongwith other accused persons. 5. Learned AGA as well as learned counsel appearing for Informant, submit that name of applicant remained consistent in FIR and statements of witnesses recorded during investigation. He was seen in various CCTV footages running away from place of occurrence. Only because some of accused were named belatedly does not make case of prosecution doubtful against applicant. 6. LAW ON BAIL - A SUMMARY (A) The basic rule may perhaps be tersely put as bail, not jail. (B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.