Allowed

Vikas Sahani @ Vikesh v. State of U.P.

Allahabad HC22 Aug 2023BAIL/34222/2023

Case brief

AI extract

What is this about?

In a bail application, the Allahabad High Court granted bail to the applicant Vikas Sahani, relying on parity with co-accused already released. The court found the police report concluded and noted the applicant had no criminal history or role in the fatal injuries, justifying release on personal bond with sureties.

What did the court decide?

Released on bail by furnishing personal bond and two sureties each with conditions to appear in court, not seek adjournments during evidence, and not misuse liberty.

Vikas Sahani @ Vikesh Vs State of U.P. — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:168578

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34222 of 2023

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Applicant :- Vikas Sahani @ Vikesh Opposite Party :- State of U.P. Counsel for Applicant :- Madhava Nand Shukla Counsel for Opposite Party :- G.A.,Vinod Kumar Yadav

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Hon'ble Rajeev Misra,J.

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Heard Mr. M.N. Shukla, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ram Pal Singh, Advocate, holding brief of Mr. Vinod Kumar Yadav, the learned counsel for first informant.

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Perused the record.

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This application for bail has been filed by applicant Vikas Sahani @ Vikesh seeking his enlargement on bail in Case Crime No. 259 of 2023, under Sections 294, 323, 304, 34, 504, 506 IPC, Police Station- Kotwali, District Azamgarh during the pendency of trial.

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Record shows that in respect of an incident which is alleged to have occurred on 25.5.2023, a belated F.I.R. dated 26.5.2023 was lodged by first informant- Shani Sahni and was registered as Case Crime No. Case Crime No. 259 of 2023, under Sections 294, 323, 304, 34, 504, 506 IPC, Police Station- Kotwali, District Azamgarh. In the aforesaid F.I.R. five persons namely, Bhola Sahni, Shivam Sahni, Deepti Sahni, Daroga Sahni, Vikas Sahni have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that named accused assaulted the father of first informant on account of which he sustained injuries. The injured was admitted to District Hospital, Azamgar. Ultimately, deceased scumbed to the injuries sustained him. Thereafter, the post mortem of the body of deceased was conducted. In the opinion of autopsy surgeon, the cause of death of deceased was Coma as as result of head injuries. The autopsy surgeon found following ante-mortem injuries on the body of deceased:

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Reddish abraded contusiion size 4 cm x 3 cm left side face just lateral to left eye.... Reddish Blue contusion size 5 cm x 4 cm just below left eye. "

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Ultimately, upon completion of investigation, Investigating Officer, submitted charge sheet dated 15.7.2023, whereby all the named accused have been charge sheeted under sections 294, 323, 304, 34, 504, 506 IPC. Learned counsel for applicant contends that though the applicant is named as well as charge sheeted accused, yet he is liable to be enlarged on bail. The role of causing fatal gun shot injuries is assigned to co-accused Bhola Sahni. On the above premise, it is urged that the case of present applicant is therefore, distinguishable from aforesaid co-accused. It is thus contended that similarly situate and circumstanced co-accused Daroga Sahni and Deepti Sahani have already been enlarged on bail by this Court vide order dated 25.7.2023, passed in Criminal Misc. Bail Application No. 32357 of 2023 (Daroga Sahani and Another Vs. State of U.P.). The same is reproduced herein under:

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"1. List revised.

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2. Heard Sri Madhava Nand Shukla, learned counsel for the applicants, Sri Ram Prakash Shukla, learned AGA for the State and perused the material on record.

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3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicants Daroga Sahani and Dipti Sahani, seeking enlargement on bail during trial in connection with Case Crime No. 259 of 2023, under Sections 294, 323, 304, 34, 504, 506 I.P.C., registered at P.S. Kotwali, District- Azamgarh.

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4. The F.I.R. in the present matter was lodged on 26.5.2023, under Sections 294, 323, 304, 34 I.P.C. by Shani Sahani against Bhola Sahani, Shivam Sahani, Dipti Sahani,Daroga Sahani and Vikas Sahani alleging therein that on 25.5.2022 at about 7.00 p.m. Vikas Sahani was using inappropriate language on his sister on which his father Baliram Sahani aged about 56 years and his brother Raju Sahani started talking to him, after which some dispute arose on which the accused persons came there. Bhola Sahani with lathi and rod assaulted his father Baliram Sahani and his brother Raju. His father was taken to hospital where during treatment he died.

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5. Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is argued that Baliram Sahani was found to have received a lacerated wound 3cm x 2cm bone deep right side 4cm above right eyebrow with underline bone fracture and cause of death was opined as coma due to antimortem head injury, whereas the injured Raju Sahani was found to have received reddish abraded contusion on left side of his face. It is argued that role of assault upon the deceased Baliram Sahani has been assigned to co-accused Bhola Sahani. It is argued that the applicants have not been assigned any role of assault upon the deceased and even the alleged injured. It is argued that case of the applicants is distinguishable with that of co-accused Bhola Sahani. It is argued that the applicants have no other criminal antecedents as stated in para-28 of the affidavit and are in jail since 27.5.2023.

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6. Per contra, learned AGA has opposed the prayer for bail but could not dispute the arguments as aforesaid.

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7. After having heard learned counsels for the parties and perusing the records, it is evident that role of assault upon the deceased Baliram Sahani and the injured Raju Sahani has been assigned to co-accused Bhola Sahani

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with lathi and rod. The applicants have not been assigned any overt act. The case of the applicants is distinguishable with that of the co-accused Bhola Sahani.

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8. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicants may be enlarged on bail.

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9. Let the applicants- Daroga Sahani and Dipti Sahani, be released on bail in the aforesaid case crime number on their furnishing a personal bond and two 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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ii) The applicants will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) The applicants shall file an undertaking to the effect that 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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(iv) The applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.

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(V) The applicants 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 applicants 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 them in accordance with law and the trial court may proceed against them under Section 229-A IPC.

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(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicants.

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10. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicants to prison.

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11. The bail application is allowed. "

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It is then contended co-accused Shivam has already been enlarged on bail vide order dated 4.8.2023, passed in Criminal Misc. Bail Application No. 34245 of 2023 (Shivam and Another Vs. State of U.P.), which reads as under:

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"By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No. 259 of 2023 at Police Station Kotwali District Azamgarh under Section 294, 323, 304, 34, 504, 506 I.P.C. The applicant is in jail since

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27.05.2023.

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The bail application of the applicant was rejected by the learned trial court on 11.07.2023.

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The following arguments made by Shri Madhava Nand Shukla, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Vinod Yadav, learned counsel for the informant and Shri Paritosh Kumar Malviya, learned AGA from the record, entitle the applicant for grant of bail:

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1. One Bhola Sahani and not the applicant has been identified as the principal offender who inflicted the sole fatal injury on the person of the deceased.

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2. No incriminating article which connects with the crime has been recovered from the applicant.

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3. Prosecution evidence does not connect the applicant with the offence.

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4. The applicant claims congruency in role and seeks parity in relief granted to the co-accused who have been enlarged on bail by this Court by order dated 25.07.2023, in Criminal Misc. Bail Application No. 32357 of 2023.

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5. The case of the principal offender Bhola Sahani is distinguishable from the aforesaid co-accused and the applicant.

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6. The applicant does not have any criminal history apart from this case.

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7. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.

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In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.

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Let the applicant- Shivam be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-

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(i) The applicant will not tamper with the evidence or influence any witness during the trial.

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

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On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to aforesaid co-accused. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny him bail. He, therefore, contends that for the facts and reasons mentioned in above bail orders, applicant is also liable to be enlarged on bail on the ground of parity.

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Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one.

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Applicant is in jail since 30.5.2023. As such, he has undergone more than three months of incarceration. police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. It is thus urged that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.

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Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant, with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that similarly situate and circumstanced co-accused have already been enlarged on bail, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, inspite of above, learned A.G.A. could not point out any such circumstance from the record necessitating custodial arrest of applicant during pendency of trial, the period of incarceration undergone, the clean antecedents of applicant but without making any comment on the merits of the case, applicant has made out a case for bail.

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Accordingly, the bail application is Allowed.

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Let the applicant Vikas Sahani @ Vikesh , be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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 APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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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(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL

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COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) THE APPLICANT 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 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 THE HIM/HER IN ACCORDANCE WITH LAW.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 22.8.2023

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Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Vikas Sahani @ Vikesh v. State of U.P.

Case brief

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Vikas Sahani @ Vikesh v. State of U.P.

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