Criminal Appeal against bail rejection on grounds of no motive or incriminating material. Single judge allowed appeal, set aside rejection, and granted bail with stringent conditions.
Impugned bail rejection order set aside; appellant released on furnish personal bond and sureties subject to strict conditions.
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Court No. - 67
Case :- CRIMINAL APPEAL No. - 348 of 2021
Appellant :- Neeraj Nishad Respondent :- State Of U.P. And Another Counsel for Appellant :- Kamlesh Kumar Tiwari Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Alok Kumar Rai, learned counsel for the appellant and 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 05.01.2021 passed by Special Judge, Additional Special Judge (SC/ST Act), Gorakhpur in Bail Application No.3956 of 2020 (Neeraj Nishad vs. State of U.P) arising out of Case Crime no.699 of 2020, under Sections 302 I.P.C. and Section 3(2)(5) of SC/ST Act, Police Station-Gola, District-Gorakhpur.
On earlier occasion, notices were directed to be served upon opposite party no.2 Chunni Lal S/o Santraj. In connected Criminal Appeal No.3079 of 2020 (Mahendra Nishad vs State of U.P.) arising out of same case crime No.699 of 2020, the C.J.M., Gorakhpur has sent report dated 14th December, 2020 which shows that notice has been served upon opposite party no.2 personally. Till date the opposite party no.2 has neither engaged any counsel nor has filed any counter affidavit, as such, it seems that opposite party no.2 does not want to oppose the matter and he has nothing to say in this case.
It is submitted by learned counsel for the appellant that the F.I.R. was got registered by opposite party no.2 Chunni Lal on 8.8.2020 at 9.03 AM for the incident said to have taken place on 7.8.2020 around 23 hours, with the allegation that his son Dipraj (deceased) after receiving a call on his mobile went outside the house and since then he is missing. After making an inquiry, his dead-body was found lying nearby Pokhra . After the lodging of the FIR, the dead-body of the deceased was sent for autopsy and the postmortem report reveas that there are two swelling on right and left side of head and there was fracture of third rib. Doctor has opined that the deceased died on account of coma and antemortem injury.
It has been strenuously argued by learned counsel for the appellant that the appellant is neither named in the nor any
motive has been attributed to him. The name of appellant figured up in the second statement of the informant as well as witnesses Ram Adarsh and Kanhaiya recorded u/s 161 Cr.P.C. During investigation, the police has recovered one mobile phone bearing number 9125510662 and it has come into picture that from this mobile phone five times calls were made on telephone No.7068635808. During investigation it was also revealed that telephone No.9125510662 belongs to one Jaswant Nisad with whom the deceased was having a deep rooted misunderstanding and quarrel. It is further contended by the counsel for the appellant that the appellant has neither any motive to commit the offence nor any role has been attributed to him. On a casual remark of certain witnesses that they have also seen Mahendra Nishad and Neeraj Nishad while going towards Pokhra , it has been gathered that they also might have been involved in the commission of the offence, but there is nothing on record even for the sake of semblance showing their involvement in the commission of offence. Neither any recovery nor any incriminating material is there from the possession or at the pointing out of the appellant. The appellant is languishing in jail since 11.8.2020.
Learned A.G.A opposed the prayer for bail but could not dispute the above facts.
The submission made by learned counsel for the appellant, prima facie , is 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 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- Neeraj Nishad , 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 order dated 05.01.2021 passed by Special Judge, Additional Special Judge (SC/ST Act), Gorakhpur, is hereby set aside.
Order Date :- 20.7.2021 M. Kumar
2 issues framed by the court
Whether to grant bail to the appellant in a case involving Sections 302 IPC and SC/ST Act.
Whether the bail rejection order passed by the Special Judge is sustainable.
4 provisions across 3 enactments
Neeraj Nishad
State Of U.P.
Rahul Chaturvedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
