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2021 DIGILAW 957 (ALL)

Anil Bhati @ Sonu v. State of U. P.

2021-08-27

SHEKHAR KUMAR YADAV

body2021
JUDGMENT : 1. Heard Mr G. S. Chaturvedi, learned Senior counsel assisted by Mr Ajatshatru Pandey, learned counsel for the applicant, Mr Harikesh Kumar Gupta, learned counsel for the informant, learned AGA for the State and perused the record. 2. Present application under Section 439 Cr.P.C. has been filed by the applicant, namely, Anil Bhati @ Sonu for release on bail, who is involved in Case Crime No. 0850 of 2020, under Sections 307, 120-B IPC, P.S. Phase-3, District Gautam Buddh Nagar. 3. As per the version of the FIR, on 14.4.2019, the informant, namely, Yogendra Yadav and his brother Shivram Yadav had gone to village Bahlolpur to attend a function in family. It is alleged that in the night at about 11.00 to 11.30 P.M. two unknown persons on a motorcycle made indiscriminate firing upon the house of the informant with an intention to kill him, and at that time only the security guard, namely, Chandra Pal was present at his house, who is said to have telephoned the informant about the alleged incident. It is further alleged that the informant, after reaching his house, is said to have informed the police by ‘dialling 100’ and the police is said to have reached the place of occurrence and recovered the empty cartridges from outside the house. It is further alleged that prior to this incident, in the year 2000, the uncle of the informant, namely, Charan Singh son of Risal had been murdered by accused Santan and Mukesh along with others and the said accused persons have been convicted for life by trial Court. It is further alleged that Arun Yadav and Amit Yadav, the nephew of the same family of aforesaid accused, had also killed his cousin, namely Shiv Kumar Yadav son of Rajveer Singh on 16.11.2017 with the help of the shooters of Sunder Bhati and Anil Bhati’s gang. 4. It is contended by learned counsel for the applicant that the applicant is not named in the FIR and his name came in light during investigation in the statement of co accused Aashu Jat. It is further submitted that the applicant has no concern with the said co accused and the alleged incident. 5. 4. It is contended by learned counsel for the applicant that the applicant is not named in the FIR and his name came in light during investigation in the statement of co accused Aashu Jat. It is further submitted that the applicant has no concern with the said co accused and the alleged incident. 5. It is further contended that the applicant was already in Jail in connection with Case Crime No. 751 of 2017, under Sections 147, 148, 302, 34, 149, 120-B IPC and Section 7 of Criminal Law Amendment Act, P.S. Bisrak, District Gautam Budh Nagar and in the said case, he was admitted to bail by this Court vide order dated 14.11.2018 passed in Criminal Misc bail Application No. 19942 of 2018. But he could not be released due to imposition of National Security Act, 1980, which was imposed upon him vide order dated 5.12.2018, and the said detention was later-on challenged by the applicant and after the quashing of the said detention order by this Court vide order dated 19.08.2019, the applicant was finally released from District Jail on 6.12.2019. 6. It is further submitted that no offence under Sections 307, 120-B IPC is made out against the applicant as there is no evidence of conspiracy and the statement of co accused is not admissible to be taken into account. The applicant is in jail since 24.08.2020. 7. It is again submitted that it is not in dispute that when the incident in question took place, applicant was in jail and nothing is on record to show that applicant had participated directly in the occurrence. It is further submitted that after grant of bail the applicant herein in the present case, shall never misuse the concession of bail. 8. On the other hand, learned AGA as well as learned counsel for the informant have contended that there is high possibility of threat and danger to the life and safety of the complainant and his family members, as the applicant is having long criminal history of 15 cases against him under various heinous sections. 9. Learned counsel for the informant has also stated that from perusal of the statements of the informant and co accused Ashu Jaat @ Praveen said to have been recorded under Section 161 Cr.P.C., involvement of accused in the present case cannot be ruled out. 9. Learned counsel for the informant has also stated that from perusal of the statements of the informant and co accused Ashu Jaat @ Praveen said to have been recorded under Section 161 Cr.P.C., involvement of accused in the present case cannot be ruled out. The relevant extract of the statement of the informant said to have been recorded under Section 161 Cr.P.C. is as under:- ^^c;ku oknh ;ksxsUnz ;kno iq= Jh vkseohj flag ;knu fuoklh e0u0 ch0,p0 66 lsDVj 70 uks;Mk eksckbZy +000000 us iwNus ij crk;k fd esjs HkkbZ f'kodqekj ;kno dh fnuakd 16@11@2017 dks fnu es 02%30 cts ds yxHkx [ktwj dV frxM+h xksy pDdj ij xksyh ekjdj gR;k dj nh x;h FkhA f'kodqekj ds lkFk gh muds lqj{kk xkMZ jbZl iky o MªkbZoj cyhukFk dh Hkh gR;k dj nh x;h FkhA ftlds laca/k esa esjs ppsjs HkkbZ ;ksxs'k ;kno us Fkkuk fclj[k ij 1- lqUnj ;kno 2- pj.k flag iq=x.k t;jke 3- nsosUnz ;kno 4- lrsUnz ;kno iq=x.k MkypUnz fuoklhx.k iqjkuk gSoriqj Fkkuk fclj[k xkSrecq) uxj ds fo:) fnuakd 17@11@2017 dks eq0 vi0 la[;k 751@17 /kkjk 147]148]149]302]34 Hkkn0fo0 iathd`r fy[kok;k FkkA iqfyl dh takp ls irk pyk Fkk fd ;g geyk lqUnj HkkVh xSax ds vfuy HkkVh us vius 'kwVjksa ls djk;k Fkk iqfyl us rQ~rh'k ls vfuy HkkVh] 'ks: HkkVh] lgnso HkkVh] lqUnj HkkVh] Ánhi mQZ Hkksyk vkSj vej mQZ QkSth mQZ jktdqekj dk pkyku bl eqdnesa esa fd;k FkkA ml eqdnesa dh eSa iSjoh dj jgk gwaA dbZ ckj vfuy HkkVh us eq>s /kedh fHktok;h gS fd ;k rks Qslyk dj ysA ugha rks rsjk Hkh rsjs HkkbZ dh rjg gh eMZj djk nqaxkA eq>s tkudkjh feyh dh esjs ?kj ij tks fnuakd 14@04@2019 dks QkbZfjax djk;h x;h Fkh oks gh vfuy HkkVh us gha 1- vk'kw tkV mQZ Áohu mQZ /kesZaUnz iq= jktsUnz fuoklh xzke dkthiqjk Fkkuk elwjh ftyk xkft;kckn] 2- mes'k mQZ NksVs iq= oru flag fuoklh xzke jk;iqj ekSteiqj Fkkuk f'kdkjiqj tuin cqyUn'kgj ls djk;h FkhA vk'kw vkSj mes'k us gh gsyesV yxkdj eks0lk0 ls vkdj esjs ?kj ij xksfy;k pyk;h FkhA** 10. The relevant extract of statement of co accused Aashu Jat, said to have been recorded under section 161 Cr.P.C. is as under:- ^^c;ku vfHk;qDr vk'kw tkV mQZ Áohu mQZ /kesZUnz iq= jktsUnz fuoklh xzke dkthiqjk Fkkuk elwjh ftyk xkft;kckn us iwNus ij viuh xyrh dh ekQh eakxrs gq;s crk;k fd esjh vfuy HkkVh iq= lgnso HkkVh fuoklh xzke ?ka?kksyk xzsVj uks;Mk xkSrecq) uxj ls dbZ lky ls nksLRkh gS ekpZ 2019 esa mlls feyk Fkk rks mlus eq>ls viuk ,d dke djus dks crk;k Fkk fd mlds f[kykQ ;ksxsUnz ;kno fuoklh lSDVj 70 uks,Mk vius HkkbZ dh gR;k ds eqdnesa esa cgqr iSjoh dj jgk gS vkSj /kedh ls Hkh ugha eku jgk gS mlds ?kj ij tkdj tks Hkh feys mls xksyh ekj nsuk rc ns[krk gwa fd og dSls Qslyk ugha djsxk vkSj bl dke ds fy, eq>s vfuy HkkVh us ,d yk[k :i;s fn;s FksA rc eSus vius lkFkh mes'k mQZ NksVs iq= oru flag fuoklh xzke jk;iqj ekSteiqj Fkkuk f'kdkjiqj ftyk cqyan'kgj dks lkFk ysdj fnuakd 14 vizSy 2019 dks jkf= 11 cts ds yxHkx eks0lk0 ij tkdj lSDVj 70 uks;Mk esa ;ksxsUnz ;kno ds ?kj ij Qk;fjax dh FkhA ml fnu mlds ?kj ij dksbZ ugha Fkk dsoy xkMZ ckgj [kMk Fkk oks Hkh gesa ns[kdj vUnj Hkkx x;k Fkk eSa vkSj mes'k eks0 lk0 ls nksuksa gsyesV yxkdj Qk;fjax djus ds fy;s lSDVj 70 esa x;s FksA vkSj Qk;fjax djds okil vius ?kj pys x;s FksA fiLVyksa ds ckjs esa iwNus ij crk;k fd oks nksuksa fiLVy ckn esa mes'k ds ?kj j[kh Fkh vc eq>s ugha irk fd og dgak ij gSA** 11. It is further submitted by learned AGA and learned counsel for the informant that on perusal of the aforesaid statements it is very much clear that there is specific allegation that the applicant hatched the conspiracy. Further the antecedents of the accused; motive behind commission of the offence; threat perceptions to the complainant and his family members also cannot be brushed aside. It is submitted that there is every likelihood that the accused, if granted bail, would misuse the concession of bail. It is submitted that there is ample material collected during investigation establishing that the applicant has hatched conspiracy and the applicant is involved in various heinous offences, and, therefore, it would not be proper to release him on bail. 12. It is submitted that there is every likelihood that the accused, if granted bail, would misuse the concession of bail. It is submitted that there is ample material collected during investigation establishing that the applicant has hatched conspiracy and the applicant is involved in various heinous offences, and, therefore, it would not be proper to release him on bail. 12. It is further contended by learned counsel for the informant that co accused, namely, Aman Yadav, Ravindra Kumar Yadav and Pravin Kumar Yadav have been granted bail in Case Crime No. 751 of 2017, by this Court vide order dated 4.12.2019, which was challenged by him before the Apex Court. Apex Court vide order dated 5.4.2019 dismissed the appeal and directed to expedite the trial and conclude the proceedings as early as possible. It was also directed that the accused must render complete co-operation on early disposal of the matter, failing which the facility of bail granted to them may stand recalled. 13. It is further submitted that in the IInd bail application of co accused Amit Kumar Yadav, being Criminal Misc IInd Bail Application 16121 of 2020 (Amit Kumar Vs State), this Court vide order dated 19.10.2020 also directed the Trial Court to secure the presence of the co accused persons, namely, Aman Yadav, Ravindra Kumar Yadav and Pravin Kumar Yadav and other co accused persons, who were on bail and frame charges against them by the next date in the matter and proceed with the trial. 14. Further submission is that the applicant has not yet surrendered before the Court below hence no charge has been framed against him in the matter and he is deliberately absconding, therefore, considering the impact of his release on witnesses and innocent members of the family of the victim, this court should not enlarge a history sheeter on bail. 15. In the case of State of Maharashtra v. Sitaram Popat Vetal, (2004) 7 SCC 521 , it has been held by Hon’ble Supreme Court that while granting bail, the following factors among other circumstances are required to be considered by the Court: 1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and 3. Prima facie satisfaction of the court in support of the charge. 16. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; 2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and 3. Prima facie satisfaction of the court in support of the charge. 16. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are : (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 17. Keeping in view the law laid down in catena of decisions upon use of discretionary power of grant of bail and also considering the nature of the allegations; the impact of release of such accused, having chequered history, on witnesses and family of victim, gravity of offence, and the evidence collected during investigation, applicant’s involvement that too from the jail cannot be ruled out in the present case, hence, prima facie no case for grant of any indulgence is made out. 18. Application is accordingly rejected.