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2010 DIGILAW 3518 (ALL)

Chhunnu @ Chhidda v. State of U. P.

2010-11-16

RAVINDRA SINGH

body2010
Hon. Ravindra Singh, J. 1. This bail application has been filed by the applicant Chhunnu @ Chhidda with a prayer that he may be released on bail in case crime No. 347 of 2007 under sections 147, 148, 149, 307, 302 IPC, P.S. Asmoli, District Moradabad. The applicant Chhunnu @ Chhidda has already moved the Crl. Misc. Bail Application No. 4167 of 2008, the same was allowed and the applicant was released on bail by this court vide order dated 10.3.2008. The order dated 10.3.2008 granting the bail to the applicant has been challenged by the first informant (complainant) Mashroor in the Hon'ble Supreme Court of India by way of filing Criminal Appeal No. 838 of 2009 arising out of Special Leave Petition (Crl.) No. 3572 of 2008, the same was allowed and the impugned order dated 10.3.2008 granting the bail to the applicant was set aside on 27.4.2009 and bail bonds and sureties furnished by the applicant in terms of the High Court's order stand cancelled and it was directed that applicant shall be taken into custody forthwith. In compliance of the above mentioned order dated 27.4.2009 the applicant has surrendered before the court concerned on 21.5.2009 thereafter the present bail application has been moved for granting the bail to the applicant. 2. The facts in brief of this case that that FIR has been lodged by Mashroor on 18.9.2007 at 9.25 P.M. at P.S. Asmoli in respect of the alleged incident dated 18.9.2007 occurred at about 3.00 P.M. The applicant and 21 persons have been named in the FIR. It is alleged that on 18.9.2007 the first informant had gone to purchase some goods from the shop of Anjaar where one Basiruddin @ Lala also came to buy some fruits. On shopkeeper Anjaar's refusal to sell goods to him on credit Basiruddin hurled abuses and started beating to him, on which the first informant intervened, then Basiruddin @ Lala being annoyed left the place by extending a challenged. After a short while he came back accompanied by 21 other persons including the applicant, all of them were armed with gun and country made pistol, due to fear, the applicant rushed to the house of his brother Kayyum. All the said 22 persons attacked the house of Kayyum. After a short while he came back accompanied by 21 other persons including the applicant, all of them were armed with gun and country made pistol, due to fear, the applicant rushed to the house of his brother Kayyum. All the said 22 persons attacked the house of Kayyum. On hearing the noise the residents of the house and many other residents of he village collected at the spot and challenged the accused persons then the said accused persons started firing indiscriminately, consequently nine persons sustained injuries in which the injured Raees Ahmad and Mohd. Rijwan were very serious. The injured persons were removed to the hospital for medical examination. Two injured namely Anjaar Hussain and Rijwan @ Bhoorey later on succumbed to their injuries . The deceased Rijwan died on 19.9.2007 and the deceased Anjaar Hussain has died on 30.9.2007. 3. On the very same day the cross FIR in case crime No. 347-A of 2007 under section 147, 148, 149, 307, 452, 504 IPC was lodged at P.S. Asmoli on 18.9.2007 at 6.40 P.M. by the said Basiruddin @ Lala against 25 persons. Inter alia, alleging that he went to the shop of Anjar to buy some vegetables, he told Anjaar that he was selling the vegetable on very high rate, it was not proper on which Anjaar and Shahros who were standing there started abusing to him when it was protested by the Basiruddin, he was beaten by them with kicks and fists, on some villagers intervened and passify the matter. Basiruddin then came back to his home but after some time many people including Shahros and Anjaar and Kayyum came to his house and started firing indiscriminately with intention to kill him, consequently Arman Jahan, Intezar, Mohd. Navi, Smt. Akhtari and Basiruddin @ Lala sustained injuries. After investigation of the present case the chargesheet has been submitted against 22 persons including the applicant. 4. The applicant moved an bail application before Addl. Sessions Judge/ FTC, Moradabad, the same were rejected on 18.1.2008. On 20.2.2008 the charges have been framed against all the accused persons for the offence punishable under sections 148, 307/149, 302/149 IPC. Being aggrieved by the above mentioned order dated 18.1.2008 the applicant moved the Crl. Misc. Bail Application No. 4167 of 2008 before this court, the same was allowed on 10.3.2008. On 20.2.2008 the charges have been framed against all the accused persons for the offence punishable under sections 148, 307/149, 302/149 IPC. Being aggrieved by the above mentioned order dated 18.1.2008 the applicant moved the Crl. Misc. Bail Application No. 4167 of 2008 before this court, the same was allowed on 10.3.2008. Being aggrieved from the order dated 10.3.2008 the first informant Mashroor preferred the Crl. Appeal No. 838 of 2009 arising out of Special Leave Petition (Crl.) No. 3572 of 2008 in Hon. Supreme Court of India but the same has been allowed on 27.4.2009 and the order dated 10.3.2008 passed by this court granting the bail to the applicant has been set aside. But in the judgement and order dated 27.4.2009 it has been mentioned in its paragraph 18 and 19 that - " It goes without saying that any observations touching the merits of the case against the second respondent are purely for the purpose of deciding the question of grant of bail and shall not be construed as an expression of final opinion in the main matter. We may also clarify that if in future any application for grant of bail is filed by the second respondent, it shall be considered on its own merits, uninfluenced by this order". 5. The order dated 10.3.2008 passed by this court granting the bail the applicant was set aside by the Hon'ble Supreme Court of India on 27.4.2009. The bail bonds and sureties furnished by the applicant in terms of the High Court's order has been cancelled and it was directed that the applicant shall be taken into custody forthwith. The applicant has surrendered before the court concerned on 21.5.2009. Thereafter the applicant has against moved the present bail application. 6. Heard Sri Viresh Mishra, Senior Advocate assisted by Sri S.M. Iqbal Hasan, learned counsel for he applicant, learned A.G.A. for the State of U.P., Sri Roopak Chaubey and Sri Sunil Kumar Singh, learned counsel for the complainant. I.It is contended by learned counsel for the applicant that this court has granted the bail to the applicant on 10.3.2008 in which the facts in brief, the submission made by learned counsel for the applicant, learned counsel for the complainant and learned A.G.A. have been mentioned. I.It is contended by learned counsel for the applicant that this court has granted the bail to the applicant on 10.3.2008 in which the facts in brief, the submission made by learned counsel for the applicant, learned counsel for the complainant and learned A.G.A. have been mentioned. After considering the same the applicant was released on bail, but the order dated 10.3.2008 has been set aside by Hon. Supreme Court of India because the reasons granting the bail to the applicant have not been mentioned in the order dated 10.3.2008. II.It is a case in which the cross FIR has also been registered in case crime No. 347-A of 2007 under sections 147, 148, 149, 307, 452, 504 IPC, P.S. Asmoli on he same day of he alleged incident dated 18.9.2007 at 6.40 P.M. from side of the applicant five persons have sustained injuries, there is no explanation in the present FIR about the injuries sustained by the applicant's side. It is a case in which right of private defence is available to the applicant and at this stage it can not be ascertained as to which of the party was aggressor, it may be ascertained by the trial court to draw the final conclusion. III.The applicant was remained on bail in pursuance of the order dated 10.3.2008 for a considerable period and he has not misused the liberty of bail, the applicant is peace loving person. In the present case the FIR has been lodged against 21 persons but participation of the 22 persons makes doubtful by number of injuries sustained by the injured and deceased persons. IV.The applicant and other persons have been falsely implicated under the political pressure. The entire investigation has been collected by the police under the political pressure of ruling party in the State of U.P. The investigation is tented and without doing the fair investigation the chargesheet has been submitted against the applicant and other co-accused persons whereas under the political pressure the final report has been submitted in case crime No. 347-A of 2007 whereas there was sufficient material available for submitting the chargesheet. Against the final report the protest petition has been filed by the Basiruddin in the court of learned Addl. C.J.M. Moradabad. Against the final report the protest petition has been filed by the Basiruddin in the court of learned Addl. C.J.M. Moradabad. V.It has been observed by the Hon. Supreme Court in order dated 27.4.2009 by which the order dated 10.3.2008 has been set aside that if in future any application for granting of bail is filed by the applicant, it shall be considered on its own merits, uninfluenced by this order. So the present bail application may be considered as a fresh on its merits. The applicant is innocent person, he commands respect in the society and is having landed property. He undertakes that in case he is released on bail he shall cooperate with the trial and she shall not temper with the evidence, therefore, he may be released on bail. 7. In reply of the above contention, it is submitted by learned A.G.A. and learned counsel for the complainant that this court has pleased to grant the bail to the applicant on 10.3.2008, the order dated 10.3.2008 granting the bail to the applicant has been aside by the Hon. Supreme Court after considering the merits of the case and not only on technical ground. The order dated 27.4.2009 passed by Hon. Supreme Court in a detailed order in which all the aspect of the present case have been considered . The gravity of the offence has also been considered because in the present case two persons have lost their lives and some of the persons have sustained grievous injuries. The paragraph No. 11, 12, 12, 15 and 17 of the order dated 27.4.2009 passed by Hon. Supreme Court of India are relevant for this purpose in which the merit of the case, the gravity of the offence and the factors for granting the bail have been discussed. The paragraphs No. 11,12, 13, 15 and 17 area reads as under: 11. The paragraphs No. 11,12, 13, 15 and 17 area reads as under: 11. Normally this court does not interfere with the order of the High Court relating to grant or rejection of bail but in the instant case, having carefully gone through the impugned order, we are constrained to observe that the High Court has completely ignored the basic principles which are to be kept in view while dealing with an application filed under section 439 of the Code for grant of bail and has thus, committed a manifest error in the matter of grant of bail to the second respondent, warranting interference by this court. 12. It is trite to state that the court granting bail has to exercise its discretion in a judicious manner with care and caution and not as a matter of course. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly where the accused in charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension or threat to the complainant. (c) prima facie satisfaction of the Court in support of the charge. (Sec: Ram Govind Upadhyay Vs. Sudarshan Singh5, Puran Vs. Ram bilas4 and Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav & Anr.7. 13. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the Courts. Nonetheless, such a protection can not be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan8, are quite opposite: "Liberty is to be secured through process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution." 15. As noted earlier, according to both the FIRs, the genesis of the incident is some heated argument between accused Basiruddin and Anzar (Shopkeeper). Perhaps on refusal by Anzar to sell his goods to Basiruddin on credit, he took it as a personal affront and the altercation ensued. Though the stand of Basiruddin in the FIR lodged by him in that after the incident, he had gone back to his house but the fact remains that after the investigation, which included recording of statements of many persons,a chargesheet for serious offences has been filed against 22 persons, including the second respondent, for committing the murder of two persons and causing multiple injuries to a persons. The background of the incident, the nature of the assembly, the nature of the arms carried by the accused and the manner in which the offences were committed, prima facie, reflect the character and the conduct of the accused for whom perhaps refusal by the shopkeeper to well goods on credit was a challenge to their authority and the power they wielded in the area. Be that as it may, the significant feature of the case is that the learned Judge, except for recording the submissions of counsel for both the parties, has not indicated any reason whatsoever for grant of bail. Be that as it may, the significant feature of the case is that the learned Judge, except for recording the submissions of counsel for both the parties, has not indicated any reason whatsoever for grant of bail. This is manifest from the afore-extracted order that there is no consideration of any of the factors, like nature of the offence; the evidence collected by the prosecution and forming part of the chargesheet and the circumstances under which the offences were committed, all relevant for deciding the question whether the bail should e granted or not. In our opinion, failure on the part of the learned judge in not indicating any reason for grant of bail particularly when charges against the second respondent are serious, makes his order indefensible. As observed by this Court in Puran's case (supra), giving reasons is different from discussing merits or demerits. At the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case is not to be undertaken but that does not mean that while granting bail some reasons for prima facie concluding why bail was granted are not to be indicated, which is the case here. Before closing, we may also note some disturbing features of the case, which not only show the lack of will on the part of prosecution to get the guilty punished as early as possible, it also prima facie, shows some unholy nexus between the prosecuting agency and the accused. In the first instances, the prosecution did not question the order passed by the High Court granting bail to be second respondent and other accused and after the framing of charges as for back as on 20th February, 2008 not a single witness has been examined by the prosecution so far. We say no more. The Hon'ble Apex Court has considered the cross version also, it is a case in which the plea of right of Private Defence is not available to the applicant because there is no case of the applicant that he caused injuries in exercise of right of Private Defence. In the present case the injury sustained by the persons in cross case have been explained by the prosecution itself. During investigation it was found that the cross version was absolutely false, therefore, the I.O. submitted the final report. In the present case the injury sustained by the persons in cross case have been explained by the prosecution itself. During investigation it was found that the cross version was absolutely false, therefore, the I.O. submitted the final report. In cross FIR it was alleged that five persons sustained injuries but all the five persons were not medically examined only three persons were medically examined. The applicant has not surrendered immediately after the order of the Hon'ble Supreme Court. The co-accused persons of this case have done the marpeet with the first informant. In case the applicant is released on bail, he may temper with evidence. The final report submitted by the I.O. in cross case have been accepted, the gravity of the offence is too much, therefore, the applicant may not be released on bail. 8. Considering the facts, circumstances of the case, submissions made by learned counsel for the applicant, learned A.G.A., learned counsel for the complainant and from the perusal of the record it appears that in the present case the applicant applied for bail by way of moving Crl. Misc. Bail Application No. 4167 of 2008, the same was allowed by this court on 10.3.2008. The order dated 10.3.2008 has been challenged in the Supreme Court of India by way of filing Criminal Appeal No. 838 of 2009 arising out of Special Leave Petition (Criminal) No. 3572 of 2008, the same has been allowed on 27.4.2009, the order dated 10.3.2008 passed by this court has been set aside. From the perusal of the order dated 27.4.2009 it appears that Hon'ble Supreme Court has considered the merits of the case, thereafter the order dated 10.3.2008 granting the bail to the applicant has been set aside, though it has been observed in para-19 of the order that if in future any application for granting the bail is filed by the second respondent, it shall be considered on its merits uninfluenced by this order. It means that in future if there is any good ground for releasing the applicant on bail, the same shall be considered, but in the present case the present bail application is moved on the same material by which the earlier bail application was allowed by this court on 10.3.2008 which have been set aside by the Hon'ble Supreme court vide order dated 27.4.2009. There is no fresh material for consideration of bail. There is no fresh material for consideration of bail. In cross case on which the earlier bail application was considered, after investigation the final report has been submitted and the same has been accepted by learned Magistrate concerned. There is no new material for granting the bail to the applicant. The prayer for bail is refused. 9. Accordingly this bail application is dismissed.