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1992 Supreme(All) 604
IN THE HIGH COURT OF ALLAHABAD
Virendra Saran
NAZIRA - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
Cri. Misc. Bail Application 12577 Of 1992
Decided On : 10/21/1992
G.S.Chaturvedi, MURLIDHAR MISHRA
The right of private defence is available to all persons, including those who have been involved in previous cases.
Headnote:
CRIMINAL LAW - BAIL - RIGHT OF PRIVATE DEFENCE - APPLICANTS INVOLVED IN A CASE OF HOMICIDE - APPLICANTS CLAIMING RIGHT OF PRIVATE DEFENCE - APPLICANTS NOT THE AUTHOR OF THE INJURY FOUND ON THE PERSON OF THE DECEASED - APPLICANTS BELONGING TO THE SAME FAMILY AND SOME OF THEM MIGHT HAVE BEEN FALSELY ADDED AS ACCUSED - APPLICANTS NOT HAVING RECEIVED ANY INJURY WHICH MAY LEND ASSURANCE REGARDING THEIR PARTICIPATION IN THE INCIDENT - APPLICANTS GRANTED BAIL.
Fact of the Case:
The applicants were involved in a case of homicide. They claimed the right of private defence. The applicants were not the author of the injury found on the person of the deceased. The applicants belonged to the same family and some of them might have been falsely added as accused. The applicants had not received any injury which may lend assurance regarding their participation in the incident.
Finding of the Court:
The court found that a case for grant of bail was spelled out. The court considered the facts and circumstances of the case, including the number and nature of injuries on both sides, the claims and counter claims of aggression, and the fact that the applicants were involved in some cases.
Issues: Whether the applicants were entitled to bail.
Ratio Decidendi: The court held that the applicants were entitled to bail. The court considered the fact that the applicants were not the author of the injury found on the person of the deceased, that they belonged to the same family and some of them might have been falsely added as accused, that they had not received any injury which may lend assurance regarding their participation in the incident, and that they were involved in some cases.
Final Decision: The court allowed the bail application and directed that the applicants be released on bail.
( 1 ) NOTICE of this bail application was given to the Government Advocate on 4/9/1992. This bail application came up before Mr. Justice Kundan Singh on 29/9/1992. It appears that due to some embarrassment he washed his hands of this case and directed that the case be laid before another Honble Judge. On the same date the Honble Acting Chief Justice nominated me by name to hear the bail application. The file was received in my Court on 29/9/1992 after lunch. Mr. G. S. Chaturvedi learned counsel for the applicants informed the Court that he has informed Sri Murlidhar Misra (learned counsel for the complainant) that the bail application will betaken up in my Court on that day. The learned State Counsel had also received his file but since Sri Murlidhar Misra was absent. I directed that the bail application be listed on 14/10/1992 showing the name of Sri Murlidhar Misra as counsel for the complainant. When the case was taken up on 14/10/1992 Sri Murlidhar Misra appeared and informed that this case was again listed before Honble Kundan Singh, J. and that his name was not printed in the cause list of that date. Sri B. K. Pandey, the Deputy Registrar Judicial informed the Court that he had sent a written information through special messenger to Sri Murlidhar Misra on 13/9/1992 that the case will be taken in my Court on 14/10/1992 but Sri Murlidhar Misra refused to acknowledge the receipt. Sri Murlidhar Misra denied the information given by the Deputy Registrar (Judicial) as false. To avoid any grievance to Sri Murlidhar Misra I directed that the case be taken up on 15/10/1992. ,
( 2 ) I have heard Sri G. S. Chaturvedi learned counsel for the applicants and Sri Murlidhar Misra learned counsel for the complainant and the learned State counsel on 15/10/1992, 16/10/1992, 20/10/1992 and today at great length and have perused the record.
( 3 ) THERE are 28 accused in this case of whom 16 are the applicants in this bail application. All the accused barring stray exceptions belong to the same family. Applicant Nazira. Shabbir, Gulzar and Sattar are sons of Amir Ahmad and are real brothers, Mahmood and Nisar are sons of applicant Nazira, applicants Rafiq, Ashraf, Aslam and Akram are sons of applicant Shabbir, Raizwan is son of applicant of Sattar and applicants Anis and Shakil are sons of applicant Gulzar.
( 4 ) SO far as deceased Aslam is concerned, the post-mortem report shows that he sustained a single gun shot injury and there was no other injury of any kind on his person. The role assigned to the applicants is that they had attacked the complainants side with lathis. In this way the applicants are not the author of the injury found on the person of the deceased. It is the case of the prosecution that the two parties were engaged in exchanging blows at the house of Dr. Akhtar (according to the defence case at the house of accused Gulzar) the deceased appeared in order to save and closing no time, he left the spot, in order to rush to the police station. At this stage it is alleged that non applicants Irfan and Fazal chased him to a considerable distance and the site plan shows that when the deceased had covered a distance of 270 paras he was shot by non applicant Irfan. The site plan shows that the deceased first proceeded towards south on the Rasta and then turned towards west and after crossing several houses he was Shot. The spot where the deceased was shot is not even visible from the house of Dr. Akhtar. Whether the shooting by Irfan at the instigation of Fazla was also in the prosecution of the common object of the un-law assembly leaven question mark in my mind. The learned counsel for the applicants has argued that even if we go by the prosecution case, it was the individual act of Irfan and Fazla. In my opinion this matter will have to be decided at the trial after entire evidence is recorded. The fact remains that the cases of the applicants are distinguishable from the cases of Irfan and Fazla.
( 5 ) ONE cann
