Bail application to be rejected if the applicant is likely to get convicted for an offence – Uttarakhand High Court.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA FIRST BAIL APPLICATION NO. 11920 22nd JUNE 2021 Between: Sukhpal S o Shri Ramdhun R o Ward No. 22 Rampura Near Balmiki Temple Rampura Rudrapur District Udham Singh Nagar and State of Uttarakhand. …Respondent Counsel for the Applicant : Mr. Vikas Anand. Counsel for the Respondent : Mr. V.S. Rathore learned A.G.A. for the Hon’ble Alok Kumar Verma J. This bail application has been filed under Section 439 of the Code of Criminal Procedure 1973 in connection with F.I.R. No.4619 registered with Police Station Rudrapur District Udham Singh Nagar for the offence under Section 302 read with Section 34 of I.P.C.. Facts to the limited extent necessary are that the informant Rinku Kashyap S o Babu Ram lodged an F.I.R. against the present applicant accused along with two co accused persons namely Sukhnandan and Hardev the brothers of the present applicant accused. 2 According to the F.I.R. on 01.09.2019 the informant was going to his house with his brother Prem Shankar deceased) on his Super Splendor motor cycle bearing Registration No. UK 06 AQ 2438. They reached near Balmiki temple at around 8.30 p.m. Sukhpal the present applicant accused was standing in the middle of the road. The applicant Sukhpal was asked to move out of the road. Sukhpal started misbehaving with him. Prem Shankar interrupted him then Sukhpal slapped Prem Shankar. One Chanchal of Diwakar Medical Store had intervened. The present applicant Sukhpal and his two brothers Sukhnandan and Hardev brought weapons from Nandlal’s house. Sukhpal had a Patal a sharp edged weapon in his hand a rod in Sukhnandan’s hand and a Gupti a traditional swordstick dragger in Hardev’s hand. They assaulted Prem Shankar. He received grievous injuries. He fell on the ground drenched in blood. When Yogesh and other neighbors came to the scene of the incident all three ran towards Nandlal’s house. The informant took his injured brother to the hospital with the help of Yogesh but Prem Shankar died on the way. The F.I.R. was registered at 23.00 hrs on 01.09.2019. The inquest proceeding and post mortem examination were conducted. On 04.09.2019 the present applicant accused was arrested along with the co accused persons and at the instance of the present applicant accused a Patal weapon used in commission of the crime was recovered from the present applicant’s house in front of the independent witnesses of the public Ram Babu and Suresh. Heard Mr. Vikas Anand the learned counsel for the applicant and Mr. V.S. Rathore the learned A.G.A. for the State through video conferencing. 3 The learned counsel for the applicant submitted that the applicant has been implicated in the present matter no specific role of the applicant has been assigned in the F.I.R. the applicant was beaten by the deceased and his brother in which he received grievous injuries the prosecution witness Chanchal also stated applicant received grievous injuries and he was taken to the hospital and at that time the deceased was alive the act of the applicant was in self defence therefore the act done in self defence does not constitute any offence the applicant lodged a complaint against the deceased and his brother on 02.09.2019 however his complaint was not registered by the police there are contradictions in the statements of the so called eye witnesses recorded during the investigation and the applicant is in custody since On the other hand Mr. V.S. Rathore the learned counsel appearing for the State opposed the bail application. He submitted that the incident happened twice on the date 01.09.2019. The first incident took place when the informant was going to his house with his brother Prem Shankaron his motor cycle. At that time Prem Shankar was sitting behind on the motor cycle. The present applicant Sukhpal was standing in the middle of the way. He was asked to move out of the way. Sukhpal started abusing on this. Prem Shankar asked Sukhpal why he abused. Then Sukhpal slapped him. A fight broke out between these two. Meanwhile the co accused persons namely Sukhnandan and Hardev had also come to the spot. Eye witness Chanchal of Diwakar Medical Store had intervened. The informant and his brother Prem Shankar had left their motor cycle at the spot and went to their 4 house. After sometime both of them were going to get their motor cycle the present applicant and co accused persons assaulted Prem Shankar with the intention to kill him. At that time the present applicant had a Patal a sharp edged weapon in his hand a rode in Sukhnandan’s hand and a Gupti in Hardev’s hand. They had assaulted Prem Shankar with the said weapons. The informant and Smt. Renu Pappu Smt. Mithlesh Devi and Smt. Roopam Devi eye witnesses raised an alarm. Then these three persons fled from the spot. In the said incident Prem Shankar was seriously injured. He was taken to the hospital with the help of Yogesh where the doctor declared him brought dead. The learned counsel for the State further submitted that according to the post mortem report ten injuries were found on the body of the deceased and the cause of the death was head injury. He further submitted that on 04.09.2019 the present applicant was arrested and at the instance of the applicant a Patal weapon used in commission of crime was recovered from his house in front of the independent witness Ram Babu and Suresh. The learned counsel for the State further contended that the prosecution witness namely Sanjeev in his statement recorded under Section 161 Cr.P.C. has stated that Sukhpal the present applicant was taken to the hospital but he ran away from the hospital. He further argued that all the witnesses including eye witnesses supported the prosecution case in their statements recorded under Sections 161 Cr.P.C. The act of the present applicant was not in good faith and the act was done with premeditation therefore the applicant cannot claim private defence. In the case of State of U.P. vs. Amarmani Tripathi 8 SCC 21 the Hon’ble Apex Court has held 5 that it is well settled that the matters to be considered in an application for bail are whether 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 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 2002)3 SCC 598. A ratio decidendi of the judgment of Hon’ble Apex Court in Anil Kumar Yadav vs. Stateof Delhi and another 2018(1) CCSC 117 is that in serious crimes the mere fact that the accused is in custody for more than one year may not be a relevant consideration to release the accused on bail. At this stage it would be inappropriate to discuss the evidence in depth because it is likely to influence the trial court but from the perusal of the evidence collected during the investigation it prima facie appears that the applicant was involved in this crime. No reason is found to implicate the applicant. Therefore there is no force in the submissions of the learned counsel for the applicant and no good ground has been made out for enlarging the applicant on bail at this stage therefore the bail application is liable to be rejected. The bail application is rejected accordingly. 10. 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 and the said observations shall not effect the trial of the ALOK KUMAR VERMA J. Dt: 22nd June 2021 

Summary: Bail application filed under section 439 of the code of criminal procedure, 1973 may be rejected if the nature of the offence is serious, the injuries are grave and if there is likelihood of the applicant getting convicted for the offence. This was decreed by Hon’ble Sri Justice Alok Kumar Verma saying, “it would be inappropriate to discuss the evidence in depth because it is likely to influence the trial court, but, from the perusal of the evidence, collected during the investigation, it prima facie appears that the applicant was involved in this crime. No reason is found to implicate the applicant. Therefore, there is no force in the submissions of the learned counsel for the applicant and no good ground has been made out for enlarging the applicant on bail at this stage, therefore, the bail application is liable to be rejected” in Sukhpal Vs. State of Uttarakhand [First Bail Application NO. 1197 of 2020].   The facts of the case are, an FIR was launched against the applicant and 2 co-accused according to which the informant and Prem Shankar were travelling on a bike where the applicant was an obstruction. He was asked to move aside, which resulted in misbehavior and led to physical assault. Aggrieved by this, the applicants and the co-accused brought out weapons and assaulted Prem Shankar which resulted in grievous injuries. Prem Shankar was declared dead on arrival. The applicant and the co-accused were arrested. The applicant has applied for a bail on grounds of self-defense thus lacking the intent to commit the crime. However, the counsel for the respondent submits that there was adequate time between the fight and the assault. Thus, the intention to cause harm was present and was premeditated. 
To determine the grounds considered during a bail application, the court has relied on State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21, where it was held, “the matters to be considered in 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 charge, (iii) severity of the punishment in the event of conviction, (iv) danger of the accused absconding or fleeing, if released on bail, (v) character, behavior, means, position and standing of the accused, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with, and (viii) danger, of course, of justice being thwarted by grant of bail”

Keeping in mind the above mentioned grounds and the facts of the case, the court rejected the application.
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 To determine the grounds considered during a bail application, the court has relied on State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21, where it was held, “the matters to be considered in 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 charge, (iii) severity of the punishment in the event of conviction, (iv) danger of the accused absconding or fleeing, if released on bail, (v) character, behavior, means, position and standing of the accused, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with, and (viii) danger, of course, of justice being thwarted by grant of bail” 
Keeping in mind the above mentioned grounds and the facts of the case, the court rejected the application.
Click here to read the judgement.

 Keeping in mind the above mentioned grounds and the facts of the case, the court rejected the application.