Allowed

Shahzad v. State of U.P. and Another

Allahabad HC29 Sept 2021CRLA/2845/2021

Case brief

AI extract

What is this about?

Two criminal appeals seeking bail for appellants Shahzad and Israr in a murder case under the SC/ST Act. The High Court set aside the bail rejection order, citing minor injury attribution to co-accused and lack of specific allegations against appellants in police statements, granting bail on personal bond and conditions.

What did the court decide?

Bail granted on personal bond and two sureties with strict conditions to appear in court and not seek adjournments.

Shahzad Vs State of U.P. and Another — Pension and Retirement Benefits | Allahabad HC (2021)

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Court No. - 67

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Case :- CRIMINAL APPEAL No. - 2845 of 2021

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Appellant :- Shahzad Respondent :- State of U.P. and Another Counsel for Appellant :- Surendra Mohan Mishra Counsel for Respondent :- G.A.,Santosh Kumar Srivastava

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Case :- CRIMINAL APPEAL No. - 2844 of 2021

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Appellant :- Israr Respondent :- State of U.P. and Another Counsel for Appellant :- Surendra Mohan Mishra Counsel for Respondent :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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Heard Sri O.P.Singh, learned Senior Counsel assisted by Sri Surendra Mohan Mishra, learned counsel for the appellant, learned AGA for the State and perused the material on record.

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This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for setting-aside the bail rejection order dated 30.06.2021 passed by Special Judge, SC/ST (P.A.) Act, Siddharth Nagar in Bail Application No.590 of 2021 (Ram Awadhesh Vs. State of U.P) in Case Crime no. 83 of 2021, under Sections 302, 354, 323, 504 IPC and Section 3(1)(da), 3(1)(dha), 3(2)(Va) SC/ST Act, Police Station-Itwa, District-Siddharth Nagar.

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There are two connected appeals, namely, Shahzad Vs. State of U.P. and another (Crl. Appeal no. 2845 of 2021) and another is Israr Vs. State of U.P. and another (Crl Appeal No. 2844 of 2021). Since the genesis of both the cases arise from case crime number and for the sake of brevity, both the appeals are heard and decided by a common judgment making Criminal Appeal of Shahzad as leading case.

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The order sheet indicates that despite of repeated time were granted to opposite party no.2 regarding service of notice upon opposite party no.2 concerned CJM is not cooperating and not giving any report regarding service of notice upon opposite party no.2. Though Sri Santosh Kumar Srivastava, learned counsel for the opposite party no.2 has put his appearance but even in the revised call, he is not present nor has filed any counter affidavit on his behalf. Left with no option, the Court is proposing to decide the present appeals with the help and aid of learned AGA, who has filed the counter affidavit and in response thereof rejoinder affidavit has also been filed.

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The contention raised by the learned Senior Counsel is that the present FIR was lodged on 02.05.2021 at 21.30 hours for the incident said to have been taken place on 1800 hours on the same day by one Gayadeen against as many as five named accused persons with the allegation that there was a marriage procession was going of the informant's cousin brother Indrajeet

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en-route the alleged miscreants (named accused persons) started misbehaving with ladies and young girls in the procession, when objected by the deceased Bhikhi Kannaujia, then all of them have started hurling filthy abused and assaulted by lathi and danda, kick and fists, thereafter the snatched away the bag containing the valuables and other ornaments.

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The primary contention raised by the learned counsel for the appellants/applicants that the applicants are not named in the FIR, in this transaction Bikhi has sustained fatal injury and resultantly cast heavy upon him and lost his life, whereas Gyanwati and Shobhita has sustained injuries, consequently they are natural witnesses of the incident. Contention raised by the counsel that the injured Shobhita and Gyanwati has given a four statements including the 164 Cr.P.C. statement and in all the four statements except inserting the name of the applicants in which no overt act has been attributed to the applicants. It is alleged by Sri O.P.Singh, learned Senior Counsel that the appellants are entilted for bail.

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I have keenly perused the 164 Cr.P.C. of Gyanwati, the injured in which she has attributed the role of assault to one "Munki ka Bhatija" as he has assaulted by his lathi upon the deceased. Undoubtedly the name of the Shahzad finds place in the statement under Section 164 C.P.C. with the allegation that they have started pelting stones but fact remains the fatal injury has been caused by "Munki ka Bhatija". The post mortem report of the deceased is annexed as Annexure-3, in which the doctor has opined that there is no external injury over the person of the deceased, except there is singular hematoma over the skulp. The cause of death is ante mortem head injury. Undoubtely, rest of the injured persons Gyanwati and Shobhita has sustained simple injury i.e. complaint of pain over their shoulder and neck, except this there is other injuries over their persons. Neither Shobhita nor Gyanwati has attributed any active role to the present appellants.

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Taking into account the totality of the circumstances that except the insertion of name of the appellants at the later stage and the number of injuries sustained by the deceased i.e. singular hematoma over his head.

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Learned AGA vehementally opposed the bail application by making a mention that there is recovery of certain valuables articles from the coaccused Bagula and could not dispute the fact that no overt act has been attributed to the present appellants.

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Sri O.P.Singh, learned Senior Advocate has cited one latest judgement in the case of Sri Mahadev Meena Vs. Raveen Rathore and Another in Crl. Appeal No. 1089 of 2021 decided on 27.09.2021. Paragarph 14 of the judgement is quoted herein below.

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"14. The High Court ought to have had due regard to the seriousness and gravity of the crime. The deceased was employed with the Intelligence Bureau in New Delhi. The first respondent is an employee of the AntiCorruption Bureau at Jhalawar. The material which has emerged during the course of investigation cannot simply be ignored or glossed over (as the High Court has done). The first respondent himself being an employee of the Anti-Corruption Bureau at Jhalawar, the likelihood of the evidence

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being tampered with and of the witnesses being suborned cannot be discounted. At this stage, when the Court is called upon to evaluate whether a case for the grant of bail has been made out, it is inappropriate to enter upon matters which would form the subject of the trial when evidence is adduced by the prosecution. Bail was granted to the coaccused Anita Meena primarily and substantially on the ground that she had a child of eleven months with her in jail. This cannot be the basis to a claim of parity on the part of the first respondent. The first respondent cannot claim parity with the co-accused since the allegations in the FIR and the material that has emerged from the investigation indicate that a major role has been attributed to him in the murder of the deceased."

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Thus taking the guidance of the aforesaid judgement and Keeping in view the facts of the present case and nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, taking into account the manner and mode in which the appellant has been summoned and the period of detention already undergone, and also without expressing any opinion on merits of the case, I am of the view that the appellants have made out a case for bail.

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Let the appellants-Shahzad and Israr, 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:-

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(i) THE APPELLANTs WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANTs TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.

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(ii) THE APPELLANTs SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/THEY 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.

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(iii) THE APPELLANTS 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.

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(iv) IN CASE, THE APPELLANTS 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 APPELLANTS FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM, IN

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ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(v) THE APPELLANTS 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 APPELLANTS 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/THEM IN ACCORDANCE WITH LAW.

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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.

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Accordingly, the appeal succeeds and the same stands allowed. Impugned order dated order dated 03.09.2019 passed by Special Judge, SC/ST Act/Additional Sessions Judge, Ballia, is hereby set aside.

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Order Date :- 29.9.2021 Abhishek Sri.

Shahzad v. State of U.P. and Another

Case brief

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Shahzad v. State of U.P. and Another

Case brief

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