Allowed

Munna Dubey @ Umashankar v. State of U.P. and Another

Allahabad HC3 Oct 2023CRLA/884/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a criminal appeal under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, setting aside a lower court bail rejection. The court held that criminal antecedents alone without evidence of tampering or intimidation were insufficient grounds to deny bail, emphasizing that bail is the rule and jail is the exception.

What did the court decide?

Bail granted to appellant on personal bond and two sureties subject to conditions against tampering, intimidation, and non-appearance.

Munna Dubey @ Umashankar Vs State of U.P… — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:189713

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Court No. - 85

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Case :- CRIMINAL APPEAL No. - 884 of 2023 Appellant :- Munna Dubey @ Umashankar Respondent :- State of U.P. and Another Counsel for Appellant :- Mayank Awasthi,Ajay Kumar Pandey,Sushil Shukla Counsel for Respondent :- G.A.,Vipin Chandra Pandey

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Hon'ble Mayank Kumar Jain,J.

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Heard learned counsel for the appellant, Sri Vipin Chandra Pandey, learned counsel for the informant/opposite party no.2, learned Additional Government Advocate for the State of U.P. and perused the record.

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This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 05.01.2023 passed by learned Special Judge (SC/ST) Act, Fatehpur in Bail Application No. 2840 of 2022, Session Trial No.835 of 2021 arising out of Complaint Case No. 45 of 2020, under Sections 323, 504, 392 of IPC and Section 3 (1) (Dha) of SC/ST (Prevention of Atrocities) Act, Police Station Kotwali, District Fatehpur.

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As per the prosecution version, an application under Section 156 (3) Cr.P.C. was moved by the informant against appellant and other co-accused persons alleging therein that he is a poor person and belongs to SC/ST category, his wife late Gayatri Devi earlier lodged a first information report bearing Case Crime No. 173 of 2015, under Sections 147, 323, 325, 376-D, 504, 506 of I.P.C. and Section 3 (1) (X) of SC/ST Act against Raghvendra Shukla and others. The said case is pending before the Special Judge (SC/ST) Act as Sessions Trial No. 29 of 16. The next date fixed in that case is 02.06.2018. Since his wife already expired, therefore, he was doing pairavi in that case. On 16.05.2018 informant alongwith his nephew Rajesh was coming to the Civil Court, Fatehpur for pairavi in that case. At around 9 am, appellant alongwith other co-accused persons who were ambushed near Nahar Colony, stopped the informant and abused him by addressing his caste related words and asked him to refrain from making pairavi otherwise they would kill him. The informant was beaten by them by kick & fists and wooden stick. When his nephew intervened, he was also beaten by them. They also snatched Rs. 8,000/- from the pocket of

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his nephew. Thereafter, they fled from the spot.

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Learned counsel for the appellant argued that the appellant is innocent and he has been falsely implicated in this case. It is further submitted that Investigating Officer proceeded with the investigation and matter was investigated and thereafter a final report was submitted. Feeling aggrieved with the final report, the opposite party no.2 filed a protest petition which was registered as a complaint case. It is further submitted that there are material contradictions in the statements of the informant recorded under Section 200 Cr.P.C. It is further submitted that informant did not make any specific allegation against any of the accused by whom Rs. 8,000/- were snatched from the pocket of his nephew. It is further submitted that Rajesh, nephew of the informant in his statement recorded under Section 202 Cr.P.C. stated that accused Raghvendra Shukla snatched Rs. 8,000/ from his pocket. It is further submitted that witness Ram Gopal in his statement recorded under Section 202 Cr.P.C. stated that he has also seen the accused Raghvendra Shula at the time of snatching Rs. 8,000/ from the pocket of informant. It is further submitted that coaccused Rajvind @ Raghvendra Shukla, Rohit, Shivam and mohit have already been granted bail by the court concerned. The bail application of the appellant was rejected merely on the basis of criminal antecedents of appellant. It is further submitted that no offence under Section 392 I.P.C. is made out as there was no intention to commit robbery. Criminal history of appellant has been explained in para-2 of the supplementary affidavit filed in support of the appeal. Lastly, it is submitted by learned counsel for the appellant that there is no chance of the appellant fleeing away from the judicial process or tampering with the prosecution evidence. The appellant is languishing in jail since 18.11.2022 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.

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5. Learned counsel for the appellant referred Sanjay Chandra Vs. C.B.I., (2012) 1 SCC 40, wherein it has been held that:-

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"The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same, right to bail is not to be denied merely because of the sentiments of the community against the accused. the primary purposes of bail in a criminal case are to relieve the accused or imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. "

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Further, learned counsel for the appellant referred Satender Kumar Antil Vs. C.B.I., (2022) 10 SCC 51 wherein it has been held that:-

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"1. ..... the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a society sensitised judicial process. ....After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in term of "procedure established by law". The last four words of Article 21 are the life of that human right."

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Per contra, learned A.G.A. assisted by learned counsel for the informant opposed the prayer for bail contending that appellant has criminal history of 38 cases. However, they could not dispute that the same has been explained through supplementary affidavit.

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No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:-

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"We may hasten to add that when we state that the accused is a historysheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

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In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.

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In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

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The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has

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been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC 51 . Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

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Having regard to the facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, this Court is of the view that the appellant has made out a case for bail. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed.

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Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.

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Let the appellant, namely, Munna Dubey @ Umashankar involved in the above Case 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 appellant will not tamper with the evidence during the trial.

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

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

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(iv) The appellant 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 appellant shall not directly or indirectly make any 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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Order Date :- 3.10.2023/AKT

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Digitally signed by :- ASHOK KUMAR TRIPATHI High Court of Judicature at Allahabad

Munna Dubey @ Umashankar v. State of U.P. and Another

Case brief

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Munna Dubey @ Umashankar v. State of U.P. and Another

Case brief

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