Allowed

Shiv Datt @ Arjun v. State of U.P.

Allahabad HC6 Jun 2023BAIL/19261/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a bail application filed by a petitioner accused of exhortation in a murder case. Relying on Supreme Court directives regarding the object of bail and the hardship of detention, the Court released the applicant on a personal bond and sureties.

What did the court decide?

Bail granted on furnishing a personal bond and two sureties in the like amount, subject to standard conditions of not tampering with evidence or pressurizing witnesses.

Shiv Datt @ Arjun Vs State of U.P. — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:124502

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Court No. - 81

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19261 of 2023

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Applicant :- Shiv Datt @ Arjun Opposite Party :- State of U.P. Counsel for Applicant :- Sandeep Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Heard learned counsel for the applicant, the learned A.G.A for the State and perused the record.

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In this case, it has been mentioned in the F.I.R. that on 29.10.2022 at about 8:00 p.m., the named accused persons Jitendra, Aryan, Naveen and two unknown persons made an altercation with the deceased happened to be the nephew of the informant and during the course of altercation, co-accused Aryan opened fire upon the deceased with a desi pistol. The occurrence was seen by witnesses Nishant Sharma @ Goldy and Sandeep alias Neetu on the street and all the five persons fled away by motorcycle. Thereafter, the deceased was taken to the hospital but declared dead. F.I.R. was lodged on 29.10.2022 and investigation started. Now, the charge sheet has been submitted into the matter.

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It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case only due to animosity. It is further submitted that present accused applicant is not named in the F.I.R. He further submitted that the eye witnesses, namely, Nishant Sharma @ Goldy and Sandeep alias Neetu whose names have been mentioned in the F.I.R. itself has assigned the role of exhortation to the present accused and it has been stated by them before the I.O. that no fire was made by the accused applicant. It is also submitted that the medical report does not corroborate the prosecution version. It is also submitted that a country made pistol has been allegedly recovered from the possession of the accused in a police encounter case but as a matter of fact, it is not a murder weapon and the recovery of the murder weapon has been shown from the possession of main accused Aryan. It is further submitted that accused applicant is languishing in jail since 03.11.2022. No offence has been committed by him, therefore, the accused

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applicant is entitled for bail.

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On the other hand, learned AGA vehemently opposed the prayer for bail and submitted that although the accused applicant is not named in the F.I.R, he was identified by the eye witnesses. Subsequently, in their statement given by the I.O., eye witnesses Nishant Sharma @ Goldy and Sandeep alias Neetu have categorically stated that the present accused was present at the time of the incident when the deceased was shot dead.

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However, learned AGA could not dispute the fact that actual firing was not made by the present accused applicant but the role of exhortation has been assigned to him as stated by eye witnesses of this case.

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I have considered the rival submissions made by the learned counsel for the parties.

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In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713, the Hon'ble Apex Court has observed that:-

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"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

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8. In Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , the Hon'ble Supreme Court has held as under :

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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

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22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to

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time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

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23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."

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In this matter, as is evident from the record that offence as alleged against the accused applicant, is only for exhortation not for actual firing. Accused applicant is in jail since 03.11.2022. Hence, keeping in view the nature of the offence, evidence, complicity of the accused, the dictum of Hon'ble Apex Court in the aforesaid cases as well as in the case of Dataram Singh vs. State of U.P. and another, (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

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Let the applicant Shiv Datt @ Arjun involved in Case Crime No. 231 of 2022, under Sections 147, 148, 149, 302, 120-B & 34 IPC, P.S. Adarsh Mandi, District - Shamli be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) The applicant will not tamper with the evidence during the trial.

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(ii) The applicant will not pressurize/ intimidate the prosecution witness.

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(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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(v) The applicant shall not directly or indirectly make any

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inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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It is made clear that the submissions and observations made in this order are only for deciding the bail application. Trial Court while deciding the trial will not be influenced with the same.

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Order Date :- 6.6.2023 Shivangi

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Digitally signed by :- SHIVANGI YADAV High Court of Judicature at Allahabad

Shiv Datt @ Arjun v. State of U.P.

Case brief

What is this about?

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Shiv Datt @ Arjun v. State of U.P.

Case brief

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