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2010 DIGILAW 1074 (ALL)

Satyavir v. State of Uttar Pradesh

2010-04-01

Y.K.SANGAL

body2010
Hon'ble Y.K.Sangal, J. 1. This Bail application has been moved on behalf of the accused Satyavir in Case Crime No. 58 of 2008 under Section 394, 302, 120 B, 504 & 504 IPC, P.S. Balaini, district Baghpat. Heard learned counsel for the applicant, learned AGA for the State and perused the record. 2. As per prosecution case, a report was lodged on 29.03.2008 by Ajaivir against the applicant and 3 other accused persons with the averments that on 29.03.2008 at 6:00 P.M., when the informant along with his Brother and other persons were sitting in the Baithak at his house, all the accused persons came there having country-made Pistol in their hands. They badly abused them, fired shots with their respective fire arms inflicting injuries to his Brother Mohanvir Singh and he succumbed to the injuries on the spot. On raising the alarm, the accused persons had also threatened to the informant and witness and escaped from there firing shots from their arms. Manoj Yadav was having political annoyance with his Brother Mohan Singh and severally he had threatened him to kill. Titu (non-applicant) is having criminal record and Manoj Yadav used to help him in the case. In collusion and conspiracy of Manoj, murder of hi brother was committed. Later on, it was told to the informant that accused persons succeeded in escaping from there from the Vehicle of Manoj. 3. On this report, case was registered against all the named accused persons and after completing the investigation, charge-sheet has been submitted in the court and on the same cognizance was taken by the learned Magistrate and case was committed to the Session for trial. It is not disputed on behalf of the applicant that proceedings in case in trial court are going on against the applicant. 4. Sole ground pressed before the Court by the learned counsel for the applicant to release the accused on bail was that co-accused Brahm Singh with similar role in the case was already released on bail under the order of this Court dated 07.11.2009 in Crl. Misc. Bail Application No. 12718 of 2009. Copy of the bail order was also referred by the learned counsel during the course of arguments, which is available on record. Learned counsel for the applicant argued that accused-applicant is in jail since 31.05.2008. Prosecution evidence still not over. Misc. Bail Application No. 12718 of 2009. Copy of the bail order was also referred by the learned counsel during the course of arguments, which is available on record. Learned counsel for the applicant argued that accused-applicant is in jail since 31.05.2008. Prosecution evidence still not over. Seeing these two facts, this Court (other bench) has granted bail to Brahm Singh and this fact was also considered by the Court that co-accused Manoj Yadav who was involved in this case with the aid of Section 120 B IPC, this court stayed his trial in Crl. Misc. Application No. 13736 of 2009, Manoj Yadav vs. State vide order dated 12.08.2009 by other bench. 5. Learned AGA opposed the Bail Application saying that release of the co-accused on bail with similar role cannot be a sole ground of release of the applicant on bail. Gravity and seriousness of the offence will be looked into by this Court in the facts and circumstances of the case. 6. As per prosecution case, in day light, under the common intention, the applicant has fired shot on the victim/deceased with an intention to kill him along with other co-accused persons at the house of the victim. Copy of the post-mortem report available filed on behalf of the applicant itself, shows that there were 4 gun shot wounds on the body of the victim and role assigned to the applicant was of firing shot with an intention to kill the victim/deceased. Without taking in notice the seriousness and gravity of offence and bail order of co-accused there, it cannot be a ground to release the applicant on bail. In support of his argument, learned AGA cited case law , Special Leave Petition No. 4059 of 2000 Rakesh Kumar Pandey vs. Munni Singh alias Mata Bux Singh. Without taking in notice the seriousness and gravity of offence and bail order of co-accused there, it cannot be a ground to release the applicant on bail. In support of his argument, learned AGA cited case law , Special Leave Petition No. 4059 of 2000 Rakesh Kumar Pandey vs. Munni Singh alias Mata Bux Singh. In this Case, the apex Court strongly denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence and while cancelling the bail granted by the High Court, it observed that: "The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as gravity of the offence, released the accused-respondents on bail, since the co-accused who had been ascribed similar role, had been granted Bail earlier." It was further observed that : "Suffice it is to say that for a serious charge, where three murders have been committed in broad day light, the High Court has not applied its mind to the relevant materials, and merely because some of the co-accused, whom similar role has been ascribed, have been released on bail earlier, has granted bail to the present accused-respondent. It is true that State normally should have moved this Court against the order in question but at the same time the power of this Court cannot be fettered merely because the State has not moved, particularly in a case like this, where our conscience is totally shocked to see that manner in which the High Court has exercised its power for release on Bail of the accused -respondents........................................The impugned order passed by the High Court suffers from gross illegality and is an order on total non-application of mind and the judgement of this Court referred to earlier analysing the provisions of Sub-Section (2) of S. 439 cannot be of any use as we are not exercising power under sub-section (2) of Section 439 Cr.P.C." In reply to this, learned counsel for the accused-applicant cited law 1993 Crl. L.J 938, Nanha vs. State of U.P., Division Bench decision of this Court. L.J 938, Nanha vs. State of U.P., Division Bench decision of this Court. In this case also the Court held that there may be cases which may require an exception, where a judge may take a different view from the Judge who granted bail earlier to co-accused but where the conscience of the Judge revolts in granting bail, in such a situation, Judge may choose to depart from the role according to his reason. Another Law cited 1999 (2) JIC 229 (All) Yunis &others vs. State of U.P. In this case also bail was granted after considering the several aspects of the case including the parity matter. In another case 2009 (1) JIC 2003 (All) Sri Narain Trivedi & others Vs. State cited on behalf of the applicant also this fact was considered by the court that allegation against the applicant was of firing- injuries were found on non-vital part of body and it was simple in nature. In 2009 (2)JIC 86 (SC) Izharul Haq Abdul Hamid Shaikh & Anr. vs. State of Gujarat, while considering the case of parity, apex Court has taken into consideration that accused was a labourer and not presumed to know content of boxes, for which he was challaned by the Police. In case 2005 (2) JIC 646 (All) Dhan Singh vs. State of U.P., this Court had considered additional facts that there was no chance of trial being completed in near future and apprehensions of tampering with witnesses or threat to the complainant could not be shown. 8. In the present case, it is correct that role assigned to the applicant was similar to the role of Brahm Singh who was released on bail but on the other hand, circumstances were considered by the Hon'ble Judge in granting his bail were that trial of co-accused Manoj Yadav was stayed by this Court. 9. Learned AGA argued that it is correct that trial of Manoj Yadav has still not started as stayed by this Court but it was stated by the learned AGA that his case was separated and trial of the accused applicant is in progress and it is in an advance stage. Correctness of this fact was also not denied by the learned counsel for the applicant. 10. Accused applicant is named in the FIR. Role assigned to him is of firing. Correctness of this fact was also not denied by the learned counsel for the applicant. 10. Accused applicant is named in the FIR. Role assigned to him is of firing. Death of Mohan took place due to anti-mortem injuries received from the shot of fire arms . There is prompt FIR in the matter. Eye witnesses of the occurrence are there. Motive of committing the offene by the accused persons is also clear from the FIR. 11. No other ground has been pressed on behalf of the applicant to release him on bail. Taking into consideration the arguments of both the parties counsel and the Law cited on their behalf and also seeing the gravity and seriousness of offence and considering facts of the case, I am of the view that applicant is not entitled to be released on bail. Bail application of the applicant is accordingly, hereby rejected. However, seeing the period of detention of the accused appellant in jail, trial court is directed to decide the case, expeditiously, if possible within six months. Inform the trial court, accordingly.