This court allowed the criminal appeal and set aside the bail rejection order passed by the Special Judge in a case involving a fatal fight under the SC/ST Act and IPC. The court held that sufficient cause was made out for bail without deciding on merits.
Impugned bail rejection order set aside; appellant released on bail with specific conditions.
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Court No. - 67
Case :- CRIMINAL APPEAL No. - 2991 of 2021
Appellant :- Diggu Kushwaha Respondent :- State of U.P. and Another Counsel for Appellant :- Maruti Kumar Tripathi,Bhupendra Kumar Pandey,Juned Alam Counsel for Respondent :- G.A.,Dinesh Kumar Singh
Hon'ble Rahul Chaturvedi,J.
Heard Shri Juned Alam, learned counsel for the appellant; Shri Praveen Shukla, Advocate holding brief of Shri dinesh Kumar Singh, learned counsel for the opposite party no.2 as well as learned A.G.A for the State and perused the record.
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 11.01.2021 passed by learned Special Judge, SC/ST (PA) Act/Additional Sessions Judge, Kushinagar at Padrauna in Bail Application No.25 of 2021 (Diggu and others vs. State of U.P) in Case Crime No.228 of 2020, under Sections 147, 323, 304, 34 I.P.C. and Section 3(2)5 of SC/ST Act, Police Station-Khadda, District-Kushinagar.
Pleadings have been exchanged between the parties and the matter is ripe for final argument.
It is submitted by learned counsel for the appellant that the contesting parties are neighbours and there was a dispute regarding construction of porch of the house, which has resulted into this unfortunate incident took place on 29.10.2020 around 3.30 P.M. An F.I.R. was registered by the appellant as Case Crime No.229 of 2020 whereas the F.I.R. lodged by Hriday Narayan was registered as Case Crime No.228 of 2020. The persons of both sides have sustained injuries and in this transaction Dev Narayan (son of the informant) has lost his life and five other persons sustained injuries. On the other side, there are five injured persons, whose injuries remained unexplained. Taking into account that there was free fight between two groups, it is not possible to decipher at this stage as to which group was aggressor over whom. Moreover, one added ground is that Criminal Appeal No.656/2021 of coaccused Vashisth has been allowed by Co-ordinate bench of this Court vide order dated 24.8.2021 and he has been enlarged on bail. Taking into account the entire gamut of the circumstances, the appellant deserves to be bailed out. The appellant is
languishing in jail since 30.10.2020.
Shri Praveen Shukla, learned counsel appeared for the opposite party no.2 has opposed the bail application by making a mention that the place of occurrence is the place of opposite party no.2 and therefore, it should be presumed that opposite group was aggressor.
The point of aggression could not be decided at this premature stage and without adverting any opinion about the merits of the case, the appellant deserves to be bailed out.
The submissions made by learned counsel for the appellant, prima facie, appear quite appealing and convincing for the purpose of bail only.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail.
Let the appellant- Diggu Kushwaha , 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:-
(i) THE APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.
(ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE 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.
(iii) THE APPELLANT 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.
(iv) IN CASE, THE APPELLANT 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 APPELLANT 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 IPC.
(v) THE APPELLANT 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 APPELLANT 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.
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.
Accordingly, the appeal succeeds and the same stands ALLOWED. Impugned order dated 11.01.2021 passed by learned Special Judge, SC/ST (PA) Act/Additional Sessions Judge, Kushinagar at Padrauna, is hereby set aside.
Order Date :- 3.9.2021 M. Kumar
2 issues framed by the court
Whether the appellant is entitled to bail despite the rejection order and nature of the offence.
Whether the free-fight nature of the incident prevents determining the aggressor at the bail stage.
4 provisions across 3 enactments
Diggu Kushwaha
State of U.P.
Rahul Chaturvedi
As recorded by the court registry
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