Pre-arrest bail is denied to the accused ,even if there is FIR of the same incident as a defence : Patna High court

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS No.355620 Arising Out of PS. Case No. 99 Year 2020 Thana GAYA MUFASIL District Gaya Lalan Yadav aged about 40 yearsSon of Sidheshwar Yadav 2. Guddu Yadav @ Army @ Guddu Kumar aged about 35 yearsSon of Sidheshwar Yadav District Gaya Both petitioner no. 1 and 2 are resident of Village Budhgere P.S. Moffasil The State of Bihar ... Petitioner s ... Opposite Party s For the Petitioner s For the State CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH Mr. S S P Yadav Advocate Mr. Sanjay Kumar Tiwary APP Date : 22 06 2021 The matter has been heard via video conferencing 2. Heard Mr. S S P Yadav learned counsel for the petitioners and Mr. Sanjay Kumar Tiwary learned Additional Public Prosecutorfor the 3. The petitioners apprehend arrest in connection with Moffasil PS Case No. 920 dated 10.03.2020 instituted under Sections 302 34 of the Indian Penal Code and 27 of the Patna High Court CR. MISC. No.355620 dt.22 06 2021 Arms Act 1959 4. The allegation against the petitioners is that they had come to the market place and had started firing in the air and threatening that they will do whatever they want and thereafter they had called other co accused and in the indiscriminate firing the informant’s son was injured and died on way to hospital 5. Learned counsel for the petitioners submitted that there is no specific allegation as to whose firing hit the deceased and the allegation is only general and omnibus of firing. It was submitted that the mother of the petitioners has also filed a case for the same incident. Learned counsel submitted that the police have also filed a third case relating to the incident. Learned counsel submitted that the petitioners are brothers and because there was conflict between two castes they have been falsely implicated and they had no role in the incident. It was further submitted that because of previous enmity they have been 6. Learned APP submitted that there is no occasion for the informant who is the father of the deceased to specifically name the petitioners as no father would save the murderer of his son by only implicating persons who are innocent. It was Patna High Court CR. MISC. No.355620 dt.22 06 2021 submitted that the false implication could have been there only when the real culprit was also made accused even though they may have been unknown but in the present case specific allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased the same is irrelevant as they were very much party to the firing and thus the responsibility for the death has to be equally taken by all the accused including the petitioners. He submitted that even the FIR lodged by the mother of the petitioners is clearly an afterthought to create a defence as the same has been lodged on 16.03.2020 though the incident is said to have taken place on 10.03.2020 and the present case as well as the police case have been lodged on the same day of the incident i.e. 7. Having considered the facts and circumstances of the case and submissions of learned counsel for the parties the Court is not inclined to grant pre arrest bail to the petitioners 8. Accordingly the application stands dismissed 9. However in view of submission of learned counsel for the petitioners it is observed that if the petitioners appear Patna High Court CR. MISC. No.355620 dt.22 06 2021 before the Court below and pray for bail the same shall be considered on its own merits in accordance with law without being prejudiced by the present order (Ahsanuddin Amanullah J

Summary: The pre-arrest bail granted in anticipation of arrest has to function like any other order granting bail till an order of conviction or till an assenting direction is passed. A single bench comprising of Justice Ahsanuddin Amanullah adjudicating the matter of Lalan Yadav v. The State of Bihar (CRIMINAL MISCELLANEOUS No. 35568 of 2020 ) dealt with an issue of whether to grant bail to the Petitioner or not. In the present case, the Petitioner is apprehending arrest u/s 302/34 of the Indian Penal Code and u/s 27 Arms Act, 1959. The Petitioner is alleged that they had come to the marketplace and had started firing in the air and threatening that they will do whatever they want and thereafter they had called other co-accused and in the indiscriminate firing the informant’s son was injured and died on way to the hospital. It was submitted by the Petitioner that there is no specific allegation as to whose firing hit the deceased and the allegation is only general and omnibus of firing.  It was also submitted that the petitioners are brothers and because there was a conflict between two castes, they have been falsely implicated and they had no role in the incident. It was further submitted that because of previous enmity they have been implicated. The Petitioners submitted that the mother of the Petitioners has also filed a case for the same incident. The Opposite party contended that there is no occasion for the informant to specifically name the petitioners as no father would save the murderer of his son by implicating persons who are innocent. Also, it was submitted that the false implication could have been there only when the real culprit was also made accused even though they may have been unknown, but in the present case-specific allegation is against the present two petitioners with regard to their role in starting the whole episode and also making indiscriminate firing and even if it is assumed that the firing made by the petitioners may not have hit the deceased, the same is irrelevant as they were very much party to the firing and thus, the responsibility for the death has to be equally taken by all the accused, including the petitioners. It was also submitted that “even the FIR lodged by the mother of the petitioners is clearly an afterthought, to create a defence, as the same has been lodged on 16.03.2020, though the incident is said to have taken place on 10.03.2020 and the present case, as well as the police case, have been lodged on the same day of the incident, i.e., 10.03.2020.”