Sunday, November 27, 2022

Accused does not get bail rights due to non-presentation of correct facts, says Allahabad High Court

The Bail application under Section 439 of Code of Criminal Procedure is filed by the applicant seeking enlargement on bail during trial in connection with Case under Sections 147, 148, 323, 324, 307, 452, 504, 506, 302 IPC, Police Station – Kotwali, District – Fatehpur.

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Allahabad High Court on Wednesday, said that due to non-presentation of correct facts in the Court, on the basis of parity of bail granted to co-accused, the accused does not get the right of bail. The Court said bail is a rule and jail an exception. Whether to grant bail or not is up to the judicial discretion of the judge.

A Single Bench of Justice Saurabh Shyam Shamshery passed this order while hearing a Criminal Misc. Bail Application filed by Soib.

The Bail application under Section 439 of Code of Criminal Procedure is filed by the applicant seeking enlargement on bail during trial in connection with Case under Sections 147, 148, 323, 324, 307, 452, 504, 506, 302 IPC, Police Station – Kotwali, District – Fatehpur. 

In this case, allegedly five named accused including the applicant,   entered inside the shop of Shanu (husband of informant) at about 10:00 p.m. on May 15, 2019, pulled him out and assaulted by  Chaapad, stick, kicks and fist. Babloo (elder brother of Shanu), Anisa Begum (mother of Shanu) and Afroz who came to rescue Shanu,   were also assaulted. Shanu succumbed to injuries during treatment in the early morning on May 16, 2019.  

According to the postmortem report Shanu received seven injuries whereas three injured persons have received injuries of simple nature. 

Counsel for applicant submitted that all other four co¬accused have already been granted bail by a co-ordinate Bench of the Court.

Counsel further submitted that no specific role was assigned to the applicant in the First Information Report, however, in the statement recorded under Section 161 Cr.P.C., he was assigned ‘danda’ in the statement of alleged eye¬witness  Mubarak Ali whereas co-accused, who have assigned ‘Cutter’ and ‘Chaapad’, have already  been  released  on  bail.  Applicant  is  also  entitled  to  be released on bail on the ground of parity. 

A.G.A.  has vehemently opposed the prayer and submitted that in the occurrence, the deceased was pulled out from the shop by all the accused and they assaulted him by  Chaapad, Cutter, stick, kicks and fist, who received seven injuries and died within hours. During the occurrence, all three eyewitnesses were also injured. The eye-witness accounts were consistent in regard to the presence of all the accused as well as about the manner of assault.

The Court is shocked and dismayed at the way bail applications are opposed by the State Law Officers before the Court. The assistance given by them, in most cases, is not up to the mark.

The Court noted that the neither the correct facts of the case in hand nor the manner of assault nor the weapon assigned, nor the number and nature of injuries were placed before the co-ordinate Bench even the cases of the co¬accused, who assigned ‘Chaapad’ and ‘Cutter’ in the statement of one of the eye¬witness  – Mubarak Ali was not distinguished before the co-ordinate Bench and they were granted bail on parity. 

The Court is informed by A.G.A. that they receive files only at about 10’0 Clock in the Court on the day when case is listed. Therefore, due to paucity of time, they are unable to go through the entire file/case diary and are not able to assist the Court properly. 

The State of Uttar Pradesh is the biggest litigant before the Court. The Court stated that at about 1,000 bail applications are listed   in a day before different Benches of the Court. Therefore, it is apparent that in the absence of proper assistance, rights of either of the parties are likely to be affected adversely. Therefore, it is imperative to pass certain directions to streamline the functioning of the State Law Officer.  

The Court directed, Manish Goel, Additional Advocate General to look into the matter and prepare certain guidelines in the form of a report within six weeks from today so that the State Law Officer may get reasonable time to prepare the case in order to give proper assistance.

“The contents of First Information Report as well as the bare perusal of statements of the eye-witnesses, it appears that all the five accused including the applicant   entered   into   the   shop   of   deceased   and   repeatedly assaulted after pulling him out of the shop by  Chhapad, Cutter, stick, kicks and fists. The presence of the applicant along with co accused,  prima   facie,  established   from   the   evidence   on   record. Deceased has received seven injuries (two on left side of scalp, three   on   chest   and   two   on   fingers)   whereas   the   three   eyewitnesses have also received injuries which are of simple in nature”, the Court observed.

In the statement of the witness – Mubarak Ali, the applicant is assigned a cutter whereas the witness – Yasmeen has assigned ‘danda’ and the third witness has not assigned any specific weapon to   any   accused. However,  the presence and participation of the applicant remained consistent.

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“Considering the events of occurrence, manner of assault, number of injuries received by the deceased and the eyewitnesses were also injured, I am unable to grant relief to the applicant. So far as, parity is concerned, it is settled law that parity alone is not a sole ground to grant bail and the orders whereby the co¬accused have been granted bail, are passed in absence of proper assistance on behalf of the State Law Officer, who were failed to brought the correct facts of the occurrence before the co¬ordinate Bench of the Court”, the Court said.

In view of the above, the Court dismissed the bail application. 

The Court has fixed the next hearing of the petition on September 15, 2021.

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