Allowed

Vishambhar Dayal v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko

Allahabad HC11 Jul 2024BAIL/1539/2024

Case brief

AI extract

What is this about?

A bail application under Sections 147, 148, 149, 307 IPC for a Lucknow firing case. The applicant was not named in the FIR; complainant initially identified three other arrested men as shooters, then later alleged the applicant fired without hitting him. Citing applicant's age, illness, incarceration and bail already granted to co-accused, the court released him on bail with standard conditions.

What did the court decide?

Applicant released on bail on furnishing a personal bond with two reliable sureties each in like amount to the satisfaction of the court concerned, subject to stated conditions.

Vishambhar Dayal vs State of U.P. Thru. Prin. Secy. Home… — Quashing and FIR | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:55624

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Court No. - 8

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1539 of 2024

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Applicant :- Vishambhar Dayal Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko Counsel for Applicant :- Riyaz Ahmad,Arun Sinha,Hemant Kumar Pandey,Osama Syed,Riyaz Ahmad Counsel for Opposite Party :- G.A.,Nadeem Murtaza,Sudhanshu S. Tripathi

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Hon'ble Jaspreet Singh,J .

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Heard learned counsel for the applicant, learned A.G.A. for the State as well as Sri Nadeem Murtaza, learned counsel for the complainant.

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The applicant is arraigned in Case Crime No. 216 of 2023 under Sections 147, 148, 149, 307 I.P.C. relating to P.S. Bijnaur, District Lucknow.

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As per the version contained in the FIR lodged by complainant Kundan Singh, it is alleged that on 08.09.2023 at around 05:45 PM, the complainant had gone to visit Manoj Yadav at his residence behind Sarojini Nagar Tehsil Office for discussing certain issues, a meeting arranged by Sumit Yadav.

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It is further alleged that as soon as the complainant had reached the given place, Sumit Yadav, his uncle Vinod Yadav and two other unknown persons were already waiting for the complainant and upon seeing the complainant started firing at the complainant. In the said firing two bullets hit the complainant and in order to save himself, he ran down the stairs and there the other co-accused Vishamber who was sitting in his car also fired at the complainant and the complainant could take refuge in the nearby house.

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The applicant was battling for his life in Medanta Hospital and in the said incident Manoj Yadav also received fire arm injuries.

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Sri Arun Sinha, learned counsel for the applicant made submissions that the applicant was not named in the FIR and the applicant has been falsely implicated.

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It is further alleged that in the FIR, there is a mention of two

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unknown persons, however, at every stage of the investigation, there has been a change in the stand of the complainant. It is also the case of the prosecution that three persons were apprehended and from their possession, certain incriminating articles were recovered.

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It is stated that one country-made pistol of 0.32 bore and two live cartridges were recovered from the co-accused Sumit Yadav. One country made pistol of 0.315 bore and two live cartridges were recovered from the other co-accused Ramesh Kashyap and one country-made pistol of 0.315 bore and one live cartridge were recovered from Kapil Yadav.

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It is also the case that the statement of the three co-accused namely Sumit Yadav, Kapil Yadav and Ramesh Kashyap were recorded. Even from their statements which has been brought on record as Annexure Nos. 10 to 12, there is no statement to indicate that the applicant was involved in any firing. The complainant in his statement stated that he received information that the persons who had fired at the complainant, they have been arrested, hence, he went to the police station where they were detained were identified by the complainant and he stated that he recognized the people, though, he did not know their names, the same was reiterated by the other injured namely Manoj Yadav and the statement did not implicate the present applicant.

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It is at a later stage that the complainant on 10.10.2023 had addressed a letter to the Police Commissioner of Lucknow, a copy of which has been brought on record as Annexure No. 17. It is at that stage, it was stated by him that the alleged persons who had been arrested and who were said to have been identified by the complainant did not fire rather it was the applicant who had fired the fire arm at the complainant.

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It is also submitted that the basic falcity of the allegations made by the complainant can be gauged from the fact that it was alleged by the complainant while lodging the FIR that Sumit Yadav, the co-accused along with others had started firing but what is material to note is the fact that Sumit Yadav could not have been present as he was already in Jail in respect of another case. Thus, it clearly indicated the malafides.

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It is also urged that this needs to be seen in context with the background of the complainant who himself is a history-sheeter and about 11 cases are lodged against him under various sections of the I.P.C.. It is also urged that the other injured namely Manoj Yadav is also an accused in a murder case.

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In contradistinction to the above, the applicant who is 62 years of age and is suffering from various old age ailments has been in Jail since 12.09.2023. The applicant in the given scenario could not be present nor the allegations against the applicant which was only improved at a later stage indicated that while the complainant had a run from the spot in order to save himself while he was fleeing towards the window at that point, the present applicant is said to have been sitting in his car and it is alleged that the present applicant shot at the complainant but the said bullet did not hit the complainant.

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It is further urged that every stage, the complainant has tried to improve his case only to rope in the applicant and in such circumstances, where the applicant is suffering from serious illness and has been falsely implicated in the instant case, deserves to be enlarged on bail. The applicant has indicated his case history of three cases which relate to the year 2003 and he is in bail in all the two cases and the third case is the case at hand where the applicant is seeking bail.

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The learned A.G.A. as well as Sri Nadeem Murtaza, learned counsel for the complainant has vehemently opposed the bail application, however, it could not be disputed by Sri Murtaza that in the FIR, the applicant was not named. Even in the statement recorded of the applicant, he had alleged the role of firing but categorically stated that the said bullet did not hit the complainant.

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Sri Murtaza also could not dispute the fact that the complainant on his own along with the other injured Manoj Yadav is said to have visited the police station concerned where three persons were arrested namely Sumit Yadav, Anil Yadav and Ramesh Kashyap. It also could not be disputed by the learned A.G.A. as well as Sri Murtaza that Sumit Yadav was already in Jail in another case.

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In the aforesaid backdrop where the applicant was not named in the FIR, coupled with the fact that the complainant himself stated that he had recognized the three persons who had shot at him, were Kapil Yadav, Sumit Yadav and Ramesh Kashyap who were arrested and were in police custody till then, the name of the applicant did not surface.

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It is only when it was realized that Sumit Yadav was already in Jail, an attempt had been made to improve the case and then it is alleged that while the complainant was running to save his life towards the ring road, he saw the applicant sitting in his car from where he shot but it is also admitted that it did not hit the said gun shot.

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Considering the aforesaid facts and circumstances including that the applicant is 62 years of age and suffering from various ailments which have been confirmed as evident from the report of the jail doctor, a copy of which has been placed on record by the learned A.G.A. Coupled with the fact that the other coaccused Sumit Yadav, Ramesh Kashyap, Kapil Yadav have already been enlarged on bail and these are the persons who it was alleged by the complainant that they have fired at the complainant and they were identified by the complainant and later by moving an application to the Police Commissioner, a complete somersault was taken by the complainant that the said persons have not fired at the complainant rather it was the applicant but nevertheless in so far as the bullet injuries is concerned, the same was not from the alleged firing of the applicant.

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Considering the rival submissions, the facts and circumstances of the case and the material available on record as well as considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.

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Let the applicant- Vishambhar Dayal involved in the aforesaid case be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned.

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At the time of executing required sureties the following conditions shall be imposed in the interest of justice.

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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

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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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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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O rder Date :- 6.8.2024

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Asheesh

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Vishambhar Dayal v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko

Case brief

What is this about?

What did the court decide?

Vishambhar Dayal v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko

Case brief

What is this about?

What did the court decide?

What the court decided

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