Allowed

Mahipal Saini v. State of U.P.

Allahabad HC17 Jun 2021BAIL/1011/2021

Case brief

AI extract

What is this about?

The High Court allowed the bail application of Mahipal Saini charged with murder and affray. Balancing the severity of the charge against the denial of bail to co-accused and evidence gaps, the Court released him on a personal bond, citing lockdown constraints on sureties.

What did the court decide?

Released on bail by furnishing a personal bond with two sureties each to be provided within one month.

Mahipal Saini Vs State of U.P. — Bail and Remand | Allahabad HC (2021)

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Court No. - 2

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1011 of 2021

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Applicant :- Mahipal Saini Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.,Atul Kumar,Saurabh Kumar

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Hon'ble Suneet Kumar,J.

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The Court convened through video conferencing.

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Heard Sri Gaurav Kakkar, learned counsel for the applicant, Sri Atul Kumar, learned counsel for the informant and learned A.G.A. appearing for the State.

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It is urged by learned counsel for the applicant that co-accused Sunni Saini, Suraj Saini and Smt. Vimlesh Saini have been enlarged on bail by this Court; applicant claims parity with that of co-accused Sunni Saini, Suraj Saini. It is urged that the incident had occurred in the morning at 09.30 in a densely populated area; the police station is two kilometer away from the incident; the role of firing by the first informant has been assigned to the applicant of having caused gun shot injury to the deceased sons of the informant (Ashish and Ashutosh); six persons were nominated. It is further urged that the eye witness account, namely, Rajendra (injured), Kuldeep and Urmila (first informant) in the first instance, have assigned the role of firing to Mahipal Saini (applicant).

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It is urged that on perusal of the post mortem report of deceased Ashish, lacerated wound on left side of head above the ear (5.5x1.0 cm.) has not been explained; and in respect of deceased Ashutosh, lacerated wound 5x1.5 cm. bone deep on right side of head, 14 cm. above right ear and lacerated wound 4.5x2.5 cm. bone deep on the top of the right shoulder has not been explained; metallic bullet was recovered from the spot. It is further urged that lungs, pericardium, liver/gallbladder shows lacerated wound on the body of the deceased. In this back drop, it is urged by learned counsel for the applicant that the injuries caused have not been explained and the weapon used in commission of the offence does not corroborate with the injuries. It is further urged that, subsequently, on consultation and deliberation other witnesses were introduced viz. Leelawati (grand-mother) and Ruchi Devi (wife of the deceased); both the witnesses claiming to be ocular witnesses, they alleged that

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Suraj and Sunni both sons of the applicant also had fired; Kuldeep in his subsequent statement introduced Suraj and Sunni stating that due to his mental state of mind he could not name them in the initial statement.

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In this back drop, it is submitted that the incident has not been witnessed by the ocular witnesses; the injury has not been explained; the assault weapon does not corroborate with the injuries; subsequently two other witnesses were introduced to coverup the lacunae. It is further submitted by learned counsel for the applicant that in similar circumstances, co-accused Sunni and Suraj have been enlarged on bail and the role of the applicant is not different to that of the said co-accused.

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It is further urged by learned counsel for the applicant that there are eight witnesses of the incident but the F.I.R. was lodged after three hours and there is no explanation for the delay or of the injuries; the assault weapon of 315 bore was recovered from all the assailants; applicant is languishing in jail since 20.08.2019 (for one year and nine months); there are 49 witnesses mentioned in the charge sheet and only one witness (informant) has been examined till date, there is no likelihood of early disposal of trial. The applicant undertakes that if enlarged on bail, he will never misuse his liberty and will cooperate in the trial.

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In rebuttal, learned counsel appearing for the first informant and learned A.G.A. opposed the prayer for bail and submit that the applicant has criminal antecedent of three cases; there is threat to the witnesses; the complainant is a widow; all the witnesses had stated that three persons, including, Mahipal fired.

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Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.

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Let the applicant, Mahipal Saini , involved in Case Crime No. 285 of 2019, under Sections 147, 148, 149, 452, 302, 307, 323, 504 I.P.C., Police Station Kotwali Nagar, District Saharanpur, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence

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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.

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(ii) The applicant 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 of the Indian Penal Code.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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 of the Indian Penal Code.

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(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant 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.

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(v) The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.

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(vi) The computer generated copy of the order shall be self attested by the counsel of the party concerned.

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(vii) 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.

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In view of the extraordinary situation prevailing in the State due to Covid-19, the directions of this Court dated 6.4.2020 passed in Public Interest Litigation No. 564 of 2020 (In re vs. State of U.P.), shall also be complied.

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The order reads thus:

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"Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes

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to furnish required sureties within a period of one month from the date of his/her actual release."

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Order Date :- 17.6.2021 K.K. Maurya

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Digitally signed by Justice Suneet Kumar Date: 2021.06.18 15:26:10 IST Reason: Document Owner Location: High Court of Judicature at Allahabad

Mahipal Saini v. State of U.P.

Case brief

What is this about?

What did the court decide?

Mahipal Saini v. State of U.P.

Case brief

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