Allowed

Deepak Makhija @ Nishu v. State of U.P. Thru. Prin. Secy. Home Lko.

Allahabad HC15 May 2024/1081/2023

Case brief

AI extract

What is this about?

In a criminal bail application for murder and related offenses under IPC and NWAA, the single-judge High Court of Allahabad (Lucknow Bench) granted bail to the applicant. The court considered the fact that all co-accused were released, the applicant's lack of prior history, and his immediate appearance at the police station upon implicaton.

What did the court decide?

Applicant released on bail furnishing a personal bond and two sureties.

Deepak Makhija @ Nishu Vs State of U.P. Thru… — Murder and Culpable Homicide | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:37194

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Court No. - 11

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1081 of 2023

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Applicant :- Deepak Makhija @ Nishu Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Satya Prakash,Shikhar Srivastava Counsel for Opposite Party :- G.A.,Ajai Kumar,Sudheer Kumar Yadav,Vivek Kumar Rai

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Shri Satya Prakash, learned counsel for the applicant, Shri G.D. Bhatt, learned A.G.A. for the State and Shri Ajai Kumar, learned counsel for the informant/complainant.

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At the very outset, learned counsel for the applicant has shown photocopies of the statements of P.W.:-1, P.W.:-2, P.W.:4 and P.W.:-5 and has requested that if this supplementary affidavit is taken on record, he may file typed copy of aforesaid statements and other documents within two days.

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The aforesaid copies of prosecution witnesses and other documents have been provided through supplementary affidavit but typed copy of those documents have not been filed.

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Considering the aforesaid request, this supplementary affidavit is taken on record with the direction to the learned counsel for the applicant to file typed copy of the statements.

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As per the learned counsel for the applicant, the present applicant is in jail since 31.10.2021 in FIR/Case Crime No.282 of 2021, under Sections 147, 148, 149, 302, 387, 120-B IPC read with Section 7 Criminal Law Amendment Act, 1932, Police Station- Alambagh, District- Lucknow.

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Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged. Attention has been drawn towards the impugned FIR, which shows that the specific allegation has been levelled against Jaspreet Singh alias Lavish, against present applicant and against one person but after completion of the investigation, the chargesheet has been filed against nine persons including the present applicant.

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Learned counsel for the applicant has submitted that the

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present applicant is having no prior criminal history of any kind whatsoever except one case under Section 3/25 of Arms Act, which has been imposed against him on account of the present case.

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Learned counsel for the applicant has further drawn attention towards the impugned FIR, which shows that alleged incident took place on 27.10.2021, impugned FIR was lodged on 28.10.2021 and when the present applicant came to know on 30.10.2021 that he has been implicated in the impugned FIR, he himself approached the police on the same date i.e. 30.10.2021 along with his younger sister to verify as to whether his name has been implicated in the impugned FIR. The applicant remained in police office on 30.10.2021 along with his younger sister as coloured photograph to that effect indicating the date has been enclosed with the bail application as Annexure No. 4.

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In his further submission, learned counsel for the applicant has submitted that had the present applicant been accused in any manner whatsoever, he would have absconded or he would have not himself appeared before the police concerned along with his younger sister. He has next submitted that to the best of his information, there is no credible evidence against him after verifying the C.C.T.V. footage.

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Learned counsel for the applicant has shown the evidence of the informant i.e. P.W.:-1 dated 09.12.2022 wherein he has stated that he had seen the incident but on being cross-examined he has stated that he was in the restaurant and when he listened the noise of fire, he came out from the restaurant and found that his father has been murdered. In his submission, he has categorically stated that co-accused Jaspreet Singh alias Lavish had took his father out of restaurant and the present applicant has fired upon him.

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Learned counsel for the applicant has stated that he is disputing the fact that the present applicant had fired upon the father of the informant but if such stories are believed on its face value, the main culprit and planner of the incident namely, Jaspreet Singh alias Lavish would left unpunished.

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Further, learned counsel for the applicant has shown the evidence and cross-examination of the doctor before the court concerned as P.W.:-5 to show that the doctor has stated that there were only two fire arm injury on the body of the deceased and out of those two fire arm injury, one injury may be wound of entry and another may be would of exit. Remaining injuries may likely be caused during treatment. Therefore, learned counsel for the applicant has submitted that the prosecution

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story, which clearly indicates that the present applicant had allegedly fired upon the deceased three shots on his chest, creates doubt.

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Attention has also been drawn towards the rejoinder affidavit showing Annexure No. RA-3 which are the bail orders of co-accused except the present applicant. The named accused Jaspreet Singh alias Lavish has been granted bail by this Court on 31.05.2023 in CRIMINAL MISC. BAIL APPLICATION No. - 7328 of 2023 wherein this fact has been considered that such co-accused had called the father of the applicant by making phone call and notably, such co-accused- Jaspreet Singh alias Lavish had brought the father of the applicant outside the restaurant. The other co-accused namely, Jasmeet Singh alias Mintu Bedi, Dilshad Ahmad alias Dilshad Siddiqui, Amar Jaiswal, Bony alias Joginder Singh, Vinay Joshi, Niteesh Bhatnagar and Ratpal Singh alias Goldi Sardar have been granted bail vide order dated 18.08.2022, 05.03.2022, 12.04.2022, 05.04.2022, 05.04.2022, 02.03.2022 and 22.02.2022 respectively in CRIMINAL MISC. BAIL APPLICATION No. - 5692 of 2022, CRIMINAL MISC. BAIL APPLICATION No. - 2134 of 2022, CRIMINAL MISC. BAIL APPLICATION No. - 3221 of 2022, CRIMINAL MISC. BAIL APPLICATION No. - 3424 of 2022, CRIMINAL MISC. BAIL APPLICATION No. - 3393 of 2022, CRIMINAL MISC. BAIL APPLICATION No. - 1924 of 2022 and CRIMINAL MISC. BAIL APPLICATION No. - 1633 of 2022 respectively.

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Learned counsel for the applicant has further submitted that out of total 22 prosecution witnesses, 5 prosecution witnesses have been examined. Out of all those prosecution witnesses, 3 prosecution witnesses are material/fact witnesses and remaining 2 witnesses are expert/formal witnesses. He has also submitted that there was no motive or intention of any kind whatsoever assigned to the applicant to commit murder of the victim and the applicant was having no rivalry of any kind whatsoever.

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In his final submission, learned counsel for the applicant submitted that looking into the pace of the trial, there is no likelihood to conclude trial in near future. Therefore, considering the total period of incarceration of the present applicant in jail i.e. about two years and seven months; the fact that all co-accused have been granted bail and the present applicant is not having criminal history of any king whatsoever, the applicant may be enlarged on bail.

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Learned counsel has further stated that the applicant undertakes that if he is released on bail, he shall abide by all terms and conditions of the bail order and shall not misuse the

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liberty of bail and shall participate in the trial proceedings.

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Learned A.G.A. for the State and learned counsel for the informant/complainant has, however, opposed the prayer for bail by submitting that all the co-accused persons have been granted bail for the reason that these co-accused were not main accused but the present applicant was the main accused, who had fired upon the deceased. They have also stated that there are some more relevant fact witnesses which are yet to be examined. Therefore, unless and until this fact witnesses are examined are summoned, the present applicant may not be granted bail.

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Learned counsel for the opposite parties have also submitted that there is recovery of Brezza car on the pointing of the present applicant, the owner of the that Brezza car is Jasperet Singh alias Lavish. Further, on his pointing out, 0.32 caliber pistol was also recovered.

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On being confronted as to whether the present applicant was having any enmity or rivalry with the victim/deceased, learned counsel for the opposite parties have stated that to the best of information, there was no prior enmity or rivalry with the applicant.

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On being further confronted about the motive or intention of the present applicant to commit the crime in question or as to whether the present applicant is a contract killer, no satisfactory reply could be given. However, something trivial has been submitted, which may be examined and decided during the course of the trial.

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Without entering into the merits of the case; considering the arguments of learned counsel for the parties; contents and allegations of F.I.R.; the fact that the specific allegation has been levelled against three persons including the applicant but after the completion of the investigation, chargesheet has been filed against nine persons; the applicant himself along with his younger sister approached the police to verify on the same date i.e. 30.10.2021 on which he came to know about his name being implicated in the FIR; the evidence of the informant i.e. P.W.:-1 dated 09.12.2022; the fact that all the 8 co-accused persons have already been granted bail; the applicant has no prior criminal history of any kind whatsoever except one case imposed on account of the present case and undertaking of the applicant that he shall abide by all conditions of the bail order and cooperate in the trial court proceedings, I find it appropriate to release the present applicant on bail.

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20. Accordingly, the bail application is allowed .

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Let applicant- Deepak Makhija @ Nishu be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 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 of the Indian Penal Code.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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 of the Indian Penal Code.

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(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 him in accordance with law.

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(v) The applicant shall not leave India without previous permission of the court.

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Order Date :- 15.5.2024 Raj

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Digitally signed by :- RAJ NIGAM High Court of Judicature at Allahabad, Lucknow Bench

Deepak Makhija @ Nishu v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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Deepak Makhija @ Nishu v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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What did the court decide?

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