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2017 DIGILAW 1515 (ALL)

Gulshan Yadav v. State of U. P.

2017-06-12

PRATYUSH KUMAR

body2017
JUDGMENT 1. Heard learned counsel for the accused-applicant. 2. This is third bail application moved on behalf of applicant. Learned counsel for the applicant submits that detention of the applicant in jail is not in accordance with law, at the time of committal of the case the magistrate had not remanded the applicant to judicial custody during and until the conclusion of the trial in accordance with section 209(2) Cr.P.C. According to him, applicant is confined in jail illegally. His first bail application was rejected by order dated 09.04.2015. His second bail application was rejected by order dated 02.8.2016 and he further submits that in application under section 482 No. 1441 of 2016 (Pushpendra Singh v. U.P. And Anr) court below was directed to expedite the proceedings of S.T. No. 102 of 2016 (State v. Gulshan Yadav and others) with further direction to try to conclude the trial within a year from the date of the application of the certified copy of this order. Thus, learned counsel for the applicant submits that applicant is illegally detained and his trial in spite of the direction issued by this Court has not been concluded within the specific time, thus, he is entitled to be released on bail. 3. On behalf of the State bail has been opposed and it has been submitted that two bail applications of the applicant have been rejected and the Court passed detailed orders. The committal order dated 22.02.2016, copy whereof is annexure-6 to the affidavit is prior to the order dated 2.8.2016, whereby second bail application was rejected thus plea of the illegality detention was available to the applicant, it cannot be said to be a new ground and under section 309 (2) Cr.P.C. court of session is competent to granted the remand, therefore only absence in the committal order does not make detention of the applicant illegal. Learned Additional Government Advocate further submits that direction for expeditious trial has not been passed on the application of the applicant, further there is nothing on record to show that this order was filed before the court below and no adjournment was taken on behalf of defence therefore applicant cannot take any benefit thereof. 4. Learned Additional Government Advocate further submits that direction for expeditious trial has not been passed on the application of the applicant, further there is nothing on record to show that this order was filed before the court below and no adjournment was taken on behalf of defence therefore applicant cannot take any benefit thereof. 4. Before considering the argument, I would like to introduce two orders passed on the earlier applications of the applicant which are extracted herein below: - “Heard learned counsel for the applicant, leaned counsel for the complainant and learned Additional Government Advocate and perused the entire record. This bail application has been moved by the accused-applicant, Gulshan Yadav, who is involved in case crime No. 247 of 2014, under Sections 307/504 I.P.C., Police Station Kunda, District Pratapgarh. Learned counsel for the applicant submits that the first information report lodged is doubtful and in fact the whole story was subsequently changed by the prosecution. It is also contended that initially no firearm injury was shown but subsequently firearm injury has been shown. It is also submitted that the first information report has been ante timed and medical report was procured by the injured himself. It is also submitted that the charge-sheet has been submitted only against two persons at present. It is also submitted that co-accused Mewa Lal has been enlarged on bail by the coordinate Bench of this Court vide order dated 05.11.2014 passed in Bail No. 6959 of 2014 and the whole case has been lodged only because of the political rivalry and enmity, therefore, accused-applicant is entitled to be released on bail. The accused-applicant is languishing in jail since 11.09.2014 as averred in paragraph-31 of the affidavit filed in support of bail application. The bail is strongly opposed by the learned counsel for the complainant and learned Additional Government Advocate on the ground that no advantage can be derived from the bail granted to co-accused Mewa Lal as the present accused-applicant is responsible for causing firearm injury on the vital part of the injured. It is also contended that the applicant has been named in the first information report, source of light is there and firearm injury has also been shown. It is also submitted that the accused-applicant has got criminal history of twenty one cases and if enlarged on bail, witnesses may be threatened and accused-applicant may abscond. It is also contended that the applicant has been named in the first information report, source of light is there and firearm injury has also been shown. It is also submitted that the accused-applicant has got criminal history of twenty one cases and if enlarged on bail, witnesses may be threatened and accused-applicant may abscond. It is also contended by the learned counsel for the complainant that various aspects of the matter are not very relevant at this stage because the witnesses are yet to be examined and prima-facie involvement of the applicant in the commission of crime and causing injury by the firearm on the vital part of the injured is there and in view of the criminal antecedents applicant does not deserve to be enlarged on bail. It is also contended that the cases shown against the applicant is of heinous nature and it was specifically submitted that while granting bail to co-accused Mewa Lal, the coordinate Bench of this Court made distinction between the present accused-applicant and co-accused Mewa Lal. Against this, learned counsel for the applicant submits that in most of the cases, either the accused-applicant has been acquitted or final report has been submitted but it has been opposed by the learned counsel for the complainant on the ground that no clear cut acquittal has been recorded and in certain cases benefit of doubt has been given to the accused-applicant. Learned counsel for the applicant submits that merely on the basis of criminal history bail to the accused-applicant cannot be refused while it has been resisted by the learned counsel for the complainant on the ground of the nature of cases registered against the applicant. Though a conclusive finding in regard to the points urged by the parties is not expected of the court considering the bail application, yet giving reasons is different from discussing merits or demerits. At the stage granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken but some reasons for conclusive finding are to be there. It appears from the perusal of record that role of firing has been assigned to the present accused-applicant and injured has received firearm injuries attributed to accused-applicant on the vital part of the body. The injured was initially taken to Primary Health Centre and subsequently to Medical College, Allahabad. It appears from the perusal of record that role of firing has been assigned to the present accused-applicant and injured has received firearm injuries attributed to accused-applicant on the vital part of the body. The injured was initially taken to Primary Health Centre and subsequently to Medical College, Allahabad. In view of the facts and circumstances of the case and keeping in view the nature of injury caused by the accused-applicant to the injured and also taking into consideration the criminal history of the applicant, I do not find it to be a fit case for bail. Accordingly, the bail application of accused-applicant, Gulshan Yadav, is hereby rejected.” “This is the second application for grant of bail in case crime No. 247/2014 under section 307/504 IPC, Police Station Kunda, district Pratapgarh. The First Bail Application of applicant has been rejected on merit after hearing at length on 9.4.2015. Heard Sri Mridul Rakesh, learned Senior Counsel assisted by Sri Rakesh Kumar Yadav, learned counsel for the applicant and Sri R.B.S.Rathore, learned counsel for the complainant and learned AGA for the State. The submission of learned counsel for the applicant is that First Bail Application of applicant was rejected on the assumption that injured had identified applicant in the solar light as well as street light and the light of bulb which was lighting at a nearby Dhaba. Learned counsel for the applicant submits that applicant had not taken a plea in the First Bail Application that there was no supply of electricity at the time of alleged occurrence, and in view thereof, injured could not have identified applicant in the light of bulb lighting at the nearby Dhaba and street light. He further submits that after the rejection of First Bail Application the applicant tried to find out if there was any supply of electricity at the time of alleged occurrence and he got a proof in writing in this regard that there was no supply of electricity and, in view of this, there was no occasion for applicant being identified in the street light as well as in the light of bulb lighting at the nearby Dhaba. He submits that since the alleged occurrence is of a dark night and there was no supply of electricity at the time of occurrence and applicant has been falsely implicated due to political rivalry, therefore, under the circumstances applicant should be allowed bail. He submits that since the alleged occurrence is of a dark night and there was no supply of electricity at the time of occurrence and applicant has been falsely implicated due to political rivalry, therefore, under the circumstances applicant should be allowed bail. Learned counsel appearing for the complainant and learned AGA has vehemently opposed the prayer saying if plea of no supply of electricity at the time of occurrence was available to the applicant but the same was not taken at the time of hearing of First Bail Application, the bail cannot be subsequently sought on this ground. They have submitted that First Bail Application of applicant was heard at length and rejected by a coordinate Bench of this Court by a detailed order and, in view of this applicant is not entitled to bail merely on the reason that he has now got a proof to the effect that there was no electricity at the time of occurrence. Upon hearing respective submission of learned counsel of both sides, I would like to say that if the plea of non supply of electricity was available to applicant but the same was not taken then bail cannot be sought subsequently on this ground. The record reflects that First Bail Application had been rejected on merit by a detailed order after hearing the submissions of both sides at length. In the result, Second Application for bail is also rejected.” 5. In reference to first ground raised on behalf of applicant case of Tej Bahadur Singh v. State of U.P. And Anr 1976 LawSuit(All) 375 has been referred to substantiate the argument that when the magistrate after committal of the case to court of session has not passed remand order, the detention of such an accused would be illegal. 6. In reference to first ground raised on behalf of applicant case of Tej Bahadur Singh v. State of U.P. And Anr 1976 LawSuit(All) 375 has been referred to substantiate the argument that when the magistrate after committal of the case to court of session has not passed remand order, the detention of such an accused would be illegal. 6. The authority referred on behalf of applicant indicates that in that case accused remained in jail for three days without any order of remand passed by the CJM but in the present case the case has been committed to court of session and court of session is seized with the matter and in accordance with provisions contained in section 309 (2) Cr.P.C. at the time of adjournment of the court of session is competent to authorize the detention of the applicant in jail and the Apex Court has also observed that if initial detention is illegal then subsequent remand legalise the detention, released and no benefit of omission of any forum would confer any benefit to person in detention. More so, this ground was available when the second bail of the applicant was argued but this point was not raised, therefore, I do not think that first ground is said to be a new ground for entertaining the first bail application. 7. In reference to second ground I find that on behalf of applicant nothing has been brought on record that certified copy of the order dated 05.04.2016 was filed before the court below, therefore, I do not think any advantage in the form of grant of bail should be given to the applicant. 8. In the last the case of Bhausaheb Nagu Dhavare v. State of Maharashtra Supreme 2001 (5) 448 has been referred in support of argument that applicant deserves to be enlarged on bail, this order was passed on the confession made on behalf of State of Maharashtra, therefore, this judgment cannot be said to be a ratio or principle that survival of the victim in a case of 307 IPC is a factor which tilts the balance in favour of the accused for grant of bail. 9. 9. In view of above, I do not find any substance in third bail application and third bail application is hereby rejected with the direction that court below shall expedite the trial and try to conclude it preferably within a period of six months from the date certified copy of this order is filed before it.