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Vijay Kumar Agrahari v/s State of U.P. & Another


Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- VIJAY J AND K PRIVATE LIMITED [Strike Off] CIN = U52100GJ1974PTC002504

Company & Directors' Information:- D VIJAY AND COMPANY LIMITED [Dissolved] CIN = U99999MH1933PTC002056

    Criminal Appeal No. 166 of 2020

    Decided On, 07 May 2020

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE ANIL KUMAR

    For the Appellant: Prashant Singh Atal, Advocate. For the Respondent: Govt. Advocate.



Judgment Text


Heard Sri Prashant Singh Atal, learned counsel for the appellant and Ms. Nand Prabha Shukla,learned Additional Government Advocate through Video Conferencing and perused the material available on record.

Present criminal appeal has been filed under section 14-A(2) of the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 against the impugned order dated 04.01.2020 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Sultanpur in Bail Application No.2317 of 2019 ( Vijay Kumar Agrahari Vs. State) in Crime No.329 of 2019 under Sections 147,148,149,452,323,307,302,325 I.P.C. & 3 (2) (V) and 3(1) Gha SC/ST ( Prevention of Atrocities) Act, Police Station Kadipur District Sultanpur through which the bail application of the appellant was rejected.

Learned counsel for the appellant while pressing the bail application submits that the applicant has not been assigned any specific role . In the same incidence, co-accused Ravindra Singh who has got identical role and his bail application was rejected by the court below, approached this Court by filing Criminal Appeal No.1914 of 2019 (Ravindra Singh Vs. State of U.P. and another) for grant of bail, the same was granted vide order dated 05.11.2019 which on reproduction reads as under:

"Heard learned counsel for the appellant, learned AGA for the State and perused the material available on record.

This appeal has been preferred under Section 14 (A) (2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, against the impugned order dated 27.8.2019, passed by learned Special Judge, SC/ST Act, Sultanpur in Bail Application No. 1828 of 2019, arising out of Case Crime No.329 of 2019, under Sections 147, 148, 149, 302, 307, 323, 452 IPC and Section 3(2) V SC/ST Act, Police Station Kadipur, District Sultanpur. The Presiding Officer has rejected the bail application of the appellant vide impugned order dated 27.8.2019.

Learned A.G.A. has raised a preliminary objection that all the victims have not been arrayed as opposite parties and they have a right to be heard in terms of the provisions of Section 15-A (3) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Section 15-A is as under :

15 A. Rights of victims and witnesses. - (1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence.

(2) A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim's age or gender or educational disadvantage or poverty.

(3) A victim or his dependent shall have the right to reasonable, accurate and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.

(4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present.

(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing.

(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Special Court or the Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses -

(a) the complete protection to secure the ends of justice;

(b) the travelling and maintenance expenses during investigation, inquiry and trial;

(c) the social-economic rehabilitation during investigation, inquiry and trial; and

(d) relocation.

(7) The State shall inform the concerned Special Court or the Exclusive Special Court about the protection provided to any victim or his dependent, informant or witnesses and such Court shall periodically review the protection being offered and pass appropriate orders.

(8) Without prejudice to the generality of the provisions of sub-section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such victim, informant or witness or on its own motion, take such measures including -

(a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public;

(b) issuing directions for non-disclosure of the identity and addresses of the witnesses;

(c) take immediate action in respect of any complaint relating to harassment of a victim, informant or witness and on the same day, if necessary, pass appropriate orders for protection :

Provided that inquiry or investigation into the complaint received under clause (c) shall be tried separately from the main case by such Court and concluded within a period of two months from the date of receipt of the complaint :

Provided further that where the complaint under clause (c) is against any public servant, the Court shall restrain such public servant from interfering with the victim, informant or witness, as the case may be, in any matter related or unrelated to the pending case, except with the permission of the Court.

(9) It shall be the duty of the Investigating Officer and the Station House Officer to record the complaint of victim, informant or witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence, whether given orally or in writing, and a photocopy of the First Information Report shall be immediately given to them at free of cost.

(10) All proceedings relating to offences under this Act shall be video recorded.

(11) It shall be the duty of the concerned State to specify an appropriate scheme to ensure implementation of the following rights and entitlements of victims and witnesses in accessing justice so as :

(a) to provide a copy of the recorded First Information Report at free of cost;

(b) to provide immediate relief in cash or in kind to atrocity victims or their dependents;

(c) to provide necessary protection to the atrocity victims or their dependents, and witnesses;

(d) to provide relief in respect of death or injury or damage to property;

(e) to arrange food or water or clothing or shelter or medical aid or transport facilities or daily allowances to victims;

(f) to provide the maintenance expenses to the atrocity victims and their dependents;

(g) to provide the information about the rights of atrocity victims at the time of making complaints and registering the First Information Report;

(h) to provide the protection to atrocity victims or their dependents and witnesses from intimidation and harassment;

(i) to provide the information to atrocity victims or their dependents or associated organisations or individuals, on the status of investigation and charge sheet and to provide copy of the charge sheet at free of cost;

(j) to take necessary precautions at the time of medical examination;

(k) to provide information to atrocity victims or their dependents or associated organisations or individuals, regarding the relief amount;

(l) to provide information to atrocity victims or their dependents or associated organisations or individuals, in advance about the dates and place of investigationa nd trial;

(m) to give adequate briefing on the case and preparation for trial to atrocity victims or their dependents or associated organisations or individuals and to provide the legal aid for the said prupose;

(n) to execute the rights of atrocity victims or their dependents or associated organisations or individuals at every stage of the proceedings under this Act and to provide the necessary assistance for the execution of the rights.

(12) It shall be the right of the atrocity victims or their dependents, to take assistance from the Non-Government Organisations, social workers or advocates.

A perusal of the sub-section 3 of Section 15-A reveals that the victim or his dependent has a right of notice of any court proceedings including any bail proceedings and the Special Prosecutor or the State Government has to inform the victim about the proceedings under this Act. There is nothing on record to demonstrate that the special prosecutor or the State Government has taken any steps to inform the victim about the proceedings under this Act, however, the said may not detain me in deciding the preliminary objection as raised by the learned A.G.A. A perusal of the FIR in question reveals that the allegations were levelled against the accused that they have murdered Lakhpati and one Daya Ram has also sustained gun shot injuries and is in a very bad physical condition admitted in the hospital. Subsequently, in the statements recorded wherein several other persons have also stated that they have also sustained injuries at the hands of the accused, however, strangely the FIR is silent with regard to any of the said injuries sustained by any of the said persons as alleged by them.

The question to be considered is what is the scope of the word victim as provided under Section- 15-A(3) of the Act and as to whether required to be heard and to be given a notice. Section 2 (ec) of the Act defines victim and is as under :

"3. Section 2.- (ec) "victim" means any individual who falls within the definition of the "Scheduled Castes and Scheduled Tribes" under clause (c) of sub-section (1) of Section 2, and who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this act and includes his relatives, legal guardian and legal heirs;"

On the perusal of the said definition it is clear that to come under definition of a victim entitled to be heard under Section 15-A (3) the individual has to establish two things, one that he falls within the definition of Scheduled Caste and Scheduled Tribe and coupled with that it has to be established that he has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this Act.

The word "offence" under this Act on a plain reading would mean the offences as alleged and provided for specifically under the said Act, they being the ones which are specified under Section 3(1). It is no doubt true that all the offences committed against persons of scheduled caste or scheduled tribe are tried by the special courts under the SC/ST Act, however, for coming within the definition of victim the individual has to allege that he has suffered or experienced as a result of commission of any offence under this Act. A perusal of the FIR reveals that the victim Daya Ram and Lakhpat were alleged to have been individuals who had suffered acts as defined under Section 3 read with the other offences in the FIR in question. In the statements there is no averment to conclude that even the said witnesses are to be impleaded in appeal.

Considering the scope as discussed I have no hesitation in holding that in the present case the dependent of the victim Lakhpat and Daya Ram are already on record. The preliminary objection in there regard is not sustained.

Coming to the allegations with regard to the grant of the bail the FIR in question reveals that the gun shot injury led to the death of Lakhpat, however, the post mortem report which is on record, does not show any injury on account of a gun shot. It is further brought on record that there is an enmity and litigation going on between the accused and the victim's family which goes back as far as since year 2003 as per the document on record Annexure No.11 onwards. The applicant is in custody since 05.7.2019 and has no criminal antecedents.

Considering the said submission and mainly on the ground that there are no gun shot injuries in the postmortem report the appellant Ravindra Singh is entitled to be enlarged on bail.

Let appellant- Ravindra Singh, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of Rs.20,000/- each in the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:

(i) The appellant shall not tamper with the evidence of witnesses and shall not commit any offence.

(ii) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(iii) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case, the appellant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(v) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Appeal is, accordingly, allowed."

Further, co-accused Shivam Singh whose bail application was rejected by the court below, approached this Court by filing Criminal Appeal No.1705 of 2019( Shivam Singh Vs. State of U.P. and another) for grant of bail, the same was granted vide order dated 13.11.2019 and co-accused/Uday Bhan Singh, who bail application was rejected by the court below, approached this Court by filing Criminal Appeal No.1706 of 2019 ( Uday Bhan Singh Vs. State of U.P. and another) for grant of bail,the same was granted vide order dated 13.11.2019 . The said orders are being annexed as Annexure nos. 14 to the affidavit filed in support of the bail application.

Accordingly, learned counsel for the accused appellant submits that the the role of the accused appellant is identical and similar so on the ground of parity, he may be granted bail.

Learned Additional Government Advocate has opposed the bail application of the accused appellant on merit however, she did not dispute the fact that on the basis of averments made in the counter affidvit that co-accused, namely, Ravinder Singh, Shiyam Singh and Uday Bhan Singh have already been granted bail by this Court in the matter in question.

I have heard learned counsel for the parties and gone through the record.

Without commenting anything on merit of the case, I am of the considered opinion that accused-appellant is entitled to be released on bail on the ground of parity Let the appellant,namely,Vijay Kumar Agrahari in case crime no.329 of 2019 under Sections 147,148,149,452,323,307,302,325 I.P.C. and 3(2) (V) and 3(1) Gha SC/ST ( P.A.) Act, Police Station Kadipur, District Sultanpur, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinio

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n of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. (vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court of Allahabad and shall make a declaration of such verification in writing. (vii) Difficulty arising in arranging of sureties because of lockdown has already been dealt with by a Division Bench of this Court in Public Interest Litigation (PIL) No.564 of 2020. Directions issued therein shall be applicable in the present case which are as follows: "Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release." Appeal is,accordingly, allowed and the impugned order dated 04.01.2020 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Sultanpur in Bail Application No.2317 of 2019 ( Vijay Kumar Agrahari Vs. State) in Crime No.329 of 2019 under Sections 147,148,149,452,323,307,302,325 I.P.C. & 3 (2) (V) and 3(1) Gha SC/ST ( Prevention of Atrocities) Act, Police Station Kadipur District Sultanpur is set aside.
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