MANNO LAL JAISWAL versus THE STATE OF UTTAR PRADESH & ANR. on 25 January 2022

1. Feeling aggrieved and dissatisfied with the impugnedjudgment(s) and order(s) dated 06.10.2020 passed by the High Court ofJudicature at Allahabad in Criminal Misc. Bail Application Nos. 6294 of2020 and 7992 of 2020 by which the High Court has released respectiveGrespondents No.2 herein on bail in connection with Case Crime No.203of 2019 for the offences punishable under Sections 147, 148, 149, 323,504, 506, 302, 307 and 34 of the IPC, P.S. Barhaj, District Deoria, theoriginal informant/complainant – father of the deceased has preferredthe present appeals.

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2. That the appellant herein lodged an FIR against respectiverespondents No.2 and others for the offences punishable under Sections147, 148, 149, 323, 504, 506, 302, 307 and 34 of the IPC for murder ofhis son. Respective respondents No.2 – accused applied to release themon bail before the learned Sessions Courts/Additional Sessions Judge,Deoria. By detailed judgment(s) and order(s) dated 19.11.2019 and22.01.2020, the learned Sessions Courts rejected the said bail applicationsafter perusing the case dairy and other documents. The learned SessionsCourts observed that the accused persons are named in the FIR and ithas been alleged that all the accused persons with a common intentionattacked the deceased by sword, hockey, stick and rod and killed the sonof the complainant. The learned Sessions Court noted that in the statementof witnesses recorded under Section 161 Cr.PC the relevant witnesseshave given evidence in support of the incident. That thereafter respectiverespondents No.2 approached the High Court by way of presentapplications under Section 439 Cr.PC to release them on bail. By theimpugned judgment(s) and order(s), the High Court applied the wrongfacts (which has been demonstrated hereinbelow) and has releasedrespective respondents No.2 on bail.

3. Feeling aggrieved and dissatisfied with the impugnedjudgment(s) and order(s) passed by the High Court releasing respectiverespondents No.2 on bail, the original complainant – father of thedeceased has preferred the present appeals.

4. Shri Vijay Kumar Shukla learned counsel appearing on behalfof the appellant – complainant has vehemently submitted that in thefacts and circumstances of the case the High Court has committed agrave error in releasing respective respondents No.2 on bail.

4.1 It is vehemently submitted by Shri Vijay Kumar Shukla learnedcounsel appearing on behalf of the appellant that while releasingrespective respondents No.2 on bail, the High Court has applied thewrong facts. It is submitted that the High Court in the impugnedjudgment(s) and order(s) has noted that the accused were not named inthe FIR, but their names have figured up during investigation. It issubmitted that aforesaid is factually incorrect. It is submitted thatrespective respondents No.2 were named in the FIR right from thebeginning. It is submitted that it was not the case on behalf of the accusedthat they were not named in the FIR and that their names were figuredup during investigation. It is submitted that even the respective learned A

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ASessions Courts while rejecting the bail applications have specificallynoted that the accused were named in the FIR.

4.2 It is further submitted by learned counsel appearing on behalfof the appellant that the High Court has noted that the statement of thewitnesses under Section 161 Cr.PC were recorded after inordinate delayBof more than 20 days. It is submitted that the same is factually incorrect.It is submitted that as such the statements of the relevant witnessesunder Section 161 Cr.PC were recorded on the very day of the incident.

4.3 It is submitted that while releasing the accused on bail theHigh Court has not taken into consideration the gravity and the nature ofCoffences committed by the accused. It is submitted that the High Courthas not at all noted and/or considered that the offence alleged was underSection 149 of the IPC also and therefore when it was found that all theaccused persons with a common intention attacked the deceased bysword, hockey, stick and rod and killed the son of the complainant, theindividual role played by each accused is insignificant and not a relevantDconsideration at all.

4.4 It is further submitted that even otherwise as such exceptnoting the submissions made on behalf of the accused as well as bylearned Public Prosecutor and thereafter making the general observationsthat keeping in view the nature of the offence, evidence, complicity ofEthe accused, submissions of the learned counsel for the parties andwithout expressing any opinion on merits of the case, the accused hasmade out a fit case for bail, no further reasons are assigned. It is submittedthat therefore the order(s) passed by the High Court releasing respectiverespondents No.2 – accused have been passed mechanically and withoutproper application of mind and without considering the relevantFconsiderations of grant of bail as held by this Court in the case of AnilKumar Yadav Vs. State (NCT of Delhi) and another; (2018) 12SCC 129 are not at all adhered to and/or considered.

5. Shri Ardhendumauli Kumar Prasad, learned AAG appearingon behalf of the State has supported the appellant. It is submitted that inGsuch grave offences under Sections 302, 147, 148, 149 of the IPC, theHigh Court ought not to have released the respective respondents No.2on bail.

6. The present appeals are opposed by Shri Krishna M. Singh,learned counsel appearing on behalf of the accused – respectiveHrespondents No.2.

6.1 It is submitted that as such it was never the case on behalf ofthe accused that they were not named in the FIR and/or that thestatements of the witnesses under Section 161 Cr.PC were recorded ata later stage/belatedly. He has taken us to the relevant averments madein the bail applications.

6.2 It is submitted that however, when the role attributed torespective respondents No.2 is that they used the wicket and nothing ison record that they used any deadly weapon and/or caused the injury onthe vital part of the body of the deceased, the High Court has notcommitted any error in releasing respective respondents No.2 on bailmore particularly when respective respondents No.2 – accused were injail since 26.08.2019 and 05.09.2020, respectively and that accused haveno criminal antecedents.

7. We have heard learned counsel appearing on behalf of therespective parties at length.

8. At the outset, it is required to be noted that respectiverespondents No.2 and other accused are charge-sheeted for the offencespunishable under Sections 147, 148, 149, 323, 504, 506, 302, 307 and 34of the IPC. That as per the case of the complainant and the prosecutionall the accused including respective respondents No.2 herein with acommon intention attacked the deceased by sword, hockey, stick androd and killed the son of the complainant. As per the post mortem report,five injuries were found on the body of the deceased and fracture in theoccipital region of head in right side and presence of hematoma in brainwas found.

8.1 Despite the fact that all the accused persons were named inthe FIR and even the statements of relevant witnesses under Section161 Cr.PC were recorded on the very day, on applying the wrong facts,the High Court has released respective respondents No.2 on bail. TheHigh Court has noted the submissions made on behalf of the accused,which has been accepted by the High Court that the accused were notnamed in the FIR and that their names were disclosed during investigationand that the statements of the witnesses under Section 161 Cr.PC wererecorded at a later stage/belatedly. The aforesaid are factually incorrect.Even the learned counsel appearing on behalf of the accused hassubmitted that it was not the case on behalf of the accused that theywere not named in the FIR and/or that the statements of the witnessesunder Section 161 Cr.PC were recorded belatedly and/or at a later stage.

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ATherefore, it appears that the High Court has granted the bail to respectiverespondents No.2 in such serious offences in which one person waskilled mechanically and without applying the correct facts.

8.2 Even otherwise the High Court has not at all appreciated thefact that all the accused were charged for the offences punishable underBSections 147, 148 and 149 also along with Section 302 of the IPC and asnoted by the learned Sessions Court vide order dated 19.11.2019 that allthe accused persons with a common intention attacked the deceased –Sumit Jaiswal by deadly weapons like sword, hockey, stick and rod. TheHigh Court has noted the submissions made on behalf of the accusedthat role attributed to respective respondents No.2 that using the wicketCas weapon it is difficult to decipher at that stage that the accused havecaused fatal injury over the person. When the accused were chargedfor the offences punishable under Section 149 of the IPC also and whentheir presencehas been established and it is stated that they were part ofthe unlawful assembly, the individual role and/or overt act by the individualDaccused is not significant and/or relevant.

8.3 Even otherwise the order(s) passed by the High Court releasingrespective respondents No.2 on bail in such serious offences in whichone person was killed is unsustainable. The High Court has not advertedto the gravity and nature of the offences at all. Even no reasons areEassigned by the High Court except observing in one paragraph as under:-

“The submissions made by learned counsel for the applicant, primafacie, quite appealing and convincing for the purpose of bail only.

Keeping in view the nature of the offence, evidence, complicityof the accused, submissions of the learned counsel for the partiesFand without expressing any opinion on merits of the case, I am ofthe view that the applicant has made out a fit case for bail.”

The aforesaid can hardly be said to be assigning the reasons.

9. Even otherwise, the High Court has also not considered therelevant considerations while grant of bail as observed and held by thisGCourt in the case of Anil Kumar Yadav (supra). In the said decision, itis observed and held by this Court that while granting bail, the relevantconsiderations are (i) nature of seriousness of the offence; (ii) characterof the evidence and circumstances which are peculiar to the accused;and (iii) likelihood of the accused fleeing from justice; (iv) the impactHthat his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. From the impugnedjudgment(s) and order(s), it appears that the High Court has not at alladverted to the relevant facts and/or considerations while granting bail.At the cost of repetition, it is observed that the High Court has releasedrespective respondents No.2 on bail mechanically and on applying thewrong facts which even as per the accused were not their cases. Theimpugned judgment(s) and order(s) releasing respective respondents No.2on bail are unsustainable both on facts as well as on law.

10. In view of the above and for the reasons stated above thepresent appeals succeed. The impugned judgment(s) and order(s) passedby the High Court releasing respective respondents No.2 on bail arehereby quashed and set aside. Now respondent No.2 – Pradyumn aliasPradumn alias Deepak Gupta in Criminal Appeal No.97 of 2022 andrespondent No.2 - Shalu in Criminal Appeal No.98 of 2022 to surrenderforthwith. However, it is observed that the observations made in thepresent order be confined for the purpose of deciding the bail only andthe learned Trial Court shall proceed with the trial and decide the samein accordance with law and on the basis of the evidences led by both thesides. The present appeals are accordingly allowed.

Ankit Gyan

Appeals allowed.

(Assisted by : Aarsh Choudhary, LCRA)

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