Bail not to be granted when evidence collected prima facie indicate involvement of accused: High Court of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA FIRST BAIL APPLICATION NO. 9820 16TH JUNE 2021 Between: Baljeet Singh @ Jot S o Shri Gurbaksh Singh R o Village Mukandpur Police Station Gadarpur District Udham Singh Nagar and State of Uttarakhand. …Applicant …Respondent Counsel for the Applicant : Mr. R. P. Singh learned counsel with Ms. Sonia Chawla learned counsel. Counsel for the Respondent : Mr. T.C. Aggarwal learned Deputy Advocate General for the State and Ms. Charanjeet Kaur counsel for the informant. Hon’ble Alok Kumar Verma J. This bail application has been filed under Section 439 of the Code of Criminal Procedure 1973 for grant of regular bail in connection with FIR No.189 of 2019 registered with Police Station Gadarpur District Udham Singh Nagar for the offence under Section 302 read with Section 34 of IPC and Section 3(2) of the Scheduled Castes and the Scheduled TribesAct 1989. Facts to the limited extent necessary are that the informant Nitesh Kumar lodged an FIR against the present applicant accused along with three named co accused persons and some unknown persons. According to the FIR the informant is a member of a Scheduled Caste. His father purchased a land measuring 1.5 acres from Janardan Dubey Tarkeshwar Dubey and Harikrishna Dubey. The land was in the possession of the informant till the year 2018. The said land is lying vacant since the year 2019. Manoj Dubey a co accused was having enmity with the informant due to the said land. Manoj Dubey used to threaten to kill him and his two brothers. He always abused them using caste indicating words. Mayank aged about 23 years the younger brother of the informant was posted as a Constable in Police Station Madhav Tanda District Pilibhit Uttar Pradesh. He had come home on leave. On 13.08.2019 the informant and his brother Mayank had come to Gadarpur for their personal work. Both of them reached Khalsa Dhaba to settle their land dispute. Mayank went inside the dhaba. The informant was standing outside. He heard gunshots. When he went inside the dhaba he saw that his brother Mayank was lying on the ground drenched in blood and three persons from inside the dhaba had run away. Manoj Dubey a co accused along with his associates Uday Veer Singh @ Sanni Virk Gaurav @ Nikka Baljeet Singh @ Jot present applicant accused) with some other associates shot and killed his brother Mayank at around 8:30 hrs. due to the land dispute. The whole incident was seen by Sandeep Singh @ Bunty Randhawa Sukhdev Singh Harman Deep Singh and Pradeep Singh. The FIR was registered at 8:30 hrs. on 13.08.2019. On 16.08.2019 the present applicant was arrested and at the time of his arrest one revolver was recovered from his possession. 3 During the investigation the name of a co accused Virender Singh @ Sunny came into light and he was arrested on 21.08.2019. At the time of the arrest of Virender Singh @ Sunny a pistol of 32 bore weapon used in commission of the crime was recovered. The post mortem examination was conducted. The statements of the witnesses were recorded under Section 161 and Section 164 of the Code of Criminal Procedure. Heard Mr. R. P. Singh the learned counsel and Ms. Sonia Chawla the learned counsel for the applicant Mr. T. C. Aggarwal the learned Deputy Advocate General for the State and Ms. Charanjeet Kaur the learned counsel for the informant through video conferencing. Mr. R. P. Singh the learned counsel for the applicant submitted that the applicant has been implicated in this matter he is an innocent person he has no concern with the land in dispute he had no enmity with the informant or his family therefore the applicant had no motive at all to cause any harm to the deceased or any member of his family the story of the informant is highly unbelievable nothing has been recovered from him he was not present on the spot he has been implicated in the alleged crime in collusion with the police personnel since the deceased was a Police Constable and the present applicant was having two pending criminal cases the presence of the so called eye witnesses are highly doubtful no offence under Section 3(2) of the Scheduled Castes and the Scheduled TribesAct 1989 is made out against him and the applicant aged about 24 years is in custody since 4 Mr. T. C. Aggarwal learned Deputy Advocate General for the State and Ms. Charanjeet Kaur the learned counsel appearing for the informant opposed the bail application and submitted that all the eye witnesses namely Sandeep Singh @ Bunty Randhawa Sukhdev Singh Harman Deep Singh and Pradeep Singh supported the case in their statements recorded under Section 161 and Section 164 of the Code of Criminal Procedure 1973 a revolver was recovered from the possession of the applicant although at the instance of the co accused Virendra Singh @ Sunny a pistol of 32 bore used in commission of the crime was recovered the Investigating Officer collected the Digital Video Recorder of the CCTV footage from Surjeet Singh @ Bittu the owner of the Khalsa Dhaba it is evidently clear from the CCTV footage that on the date of the incident the applicant was present on the spot according to Surjeet Singh @ Bittu the owner of the said dhaba a certificate under Section 65 B of the Evidence Act was prepared by the Police doctor R K Singh and doctor Akhilesh kumar conducted the post mortem examination of the dead body of the deceased and according to these witnesses the cause of death of the deceased was haemorrhage and coma as a result of the gunshot injury. Mr. T. C. Aggarwal the learned Deputy Advocate General for the State further submitted that every effort is being made by the learned trial court to examine the witnesses. It is true that Section 439 of the Code of Criminal Procedure confers very wide power regarding bail. But while granting bail the High Court is guided by the same considerations as other courts. That is to say the gravity of the crime the character of the evidence the possibility of the tampering with the evidence and such other grounds are required to be taken into consideration. 5 In Kalyan Chandra Sarkar vs. Rajesh Ranjan 8 SCC 21 the Hon’ble Apex Court has held that it is well settled that the matters to be considered in an application for bail arewhether there is any prima facie or reasonable ground to believe that the accused had committed the offence nature and gravity of charge severity of the punishment in the event of conviction danger of the accused absconding or fleeing if released on bail character behavior means position and standing of the accused likelihood of the offence being repeated reasonable apprehension of the witnesses being tampered with and danger of course of justice being thwarted by grant of bail. In determining whether to grant bail both the seriousness of the charge and the severity of the punishment should be taken into consideration. While dealing with an application for bail there is a need to indicate in the order reasons for prima facie considering why bail is being granted particularly where an accused is 6 charged of having committed a serious offence. Any order dehors reasons suffers from non application of mind as observed by the Hon’ble Apex Court in Ram Govind Upadhyay Vs. Sudarshan Singh and others of Delhi and another 2018(1) CCSC 117 the Hon’ble Apex Court has held that in serious offence the mere fact that the accused was in custody for more than one year may not be a relevant consideration to release the accused on bail. 11. The applicant accused is facing trial. During the investigation evidence has been found that there was a land dispute between the accused persons including the present applicant and the family of the informant and due to the said land dispute the deceased was murdered by the applicant along with the co accused persons. According to the post mortem report the cause of death of the deceased was haemorrhage and coma as a result of the gunshot injury. 12. It would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial court. But the evidence collected during the investigation prima facie indicate involvement of the applicant in the offence in question. No reason is found to implicate the present applicant. 7 13. In view of the facts and circumstances of the case there is no force in the submissions of the learned counsel for the applicant accused and no good ground has been made out for enlarging the applicant on bail at this stage therefore the bail applicant is liable to be rejected. The bail application is rejected accordingly. 14. It is clarified that the observations made regarding the bail application are limited to the decision in the light of the facts provided by the parties at this stage as to whether the bail application should be allowed or not. The said observations shall not effect the trial of the ALOK KUMAR VERMA J. Dated: 16th June 2021 Pant 

Summary: Bail is usually granted in most cases since the accused has not yet been convicted of the offences. However in cases where most of the evidence prima facie indicates the involvement of the accused, it would be unwise to grant bail. This was addressed in the judgement passed by Justice Alok Kumar Verma in the case of Baljeet Singh v State of Uttarakhand [First Bail Application No. 986 of 2020] pronounced on 16th June 2021. The informant, Nitesh Kumar lodged an FIR against the accused, Manoj Dubey for the allegedly murdering the informant’s brother, Mayank. The informant and his brother belonged to a Scheduled Caste community had a land dispute with the accused. The accused constantly used to abuse the brothers using casteist slurs and also threatened to murder them. On 13th August 2019, Mayank and Nitish went to Khalsa Dhaba to settle their land dispute with the accused. Mayank went inside the dhaba while Nitish was outside when he heard multiple gunshots and rushed inside. Manoj Dubey and his two co-accused associates fled the scene, however four witnesses Sandeep Singh, Sukhdev Singh, Harman Deep and Pradeep Singh saw the three accused persons murdering Mayank before they fled. While Manoj Dubey and the two co-accused persons were arrested, the pistol used in the commission of the crime was recovered from one of his associates. One of Manoj Dubey’s associates, Baljeet Singh is the applicant in this case who contended that the accused persons have already spent much time in jail without being convicted and therefore should be granted bail. The court cited the case of State of Uttar Pradesh v Amarmani Tripathi, [(2005) 8 SCC 21], where the Supreme Court of India held that whether there is any prima facie or reasonable ground to believe that the accused had committed the offence was a major matter to be considered while deciding whether bail should be granted. Considering the existing land disputes between the accused and the deceased, the death threats made by the accused, the claims by the witnesses, the recovery of the murder weapon and the post mortem report stating that the cause of the victim’s death was haemorrhage as a result of gunshot injury, the court has reasonable grounds to believe prima facie that the accused had some involvement in the death of Mayank.