The Allahabad High Court while rejecting an anticipatory bail application said that the accused fired at an informant after refraining from destroying the crop, cannot take the right of private defence.
A Single Bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Kanwar Pal.
The application for anticipatory bail has been filed for protection in regard to FIR/Case under Sections 147, 148, 149, 307 & 504 of I.P.C, P.S- Khatauli, District- Muzaffar Nagar.
Counsel for the applicant has claimed parity with co-accused Nitin Rathi, who has been granted interim protection by another Bench of the Court vide order dated 4.4.2023.
On the other hand, Counsel for the informant has vehemently opposed the above submission of the counsel for the applicant on the ground that the applicant is not entitled to anticipatory bail as the anticipatory bail application of co-accused Nitin Rathi was dismissed as infructuous vide order dated 31.05.2023.
As per prosecution story, the co-accused persons, Charan Singh, Sopal and Sukhpal had destroyed the sugarcane crop of the field of the informant and that of his neighbours Rakesh and Vikky by ploughing it by his tractor. The matter was reported to Senior Officers.
Subsequent to it, on 27.5.2022 at about 06:30 AM, the applicant along with co-accused persons Charan Singh, Sopal, Sukhpal and Nitin came to the field of the informant along with their tractor and started ploughing it again. The informant and his brother Rupendra Kumar asked them to refrain from doing so at which the applicant and co-accused Nitin fired at them by the country made pistols which they were carrying besides hurling abuses at them thereby causing serious injuries to Rupendra (brother of the informant).
On raising an alarm by the informant, the villagers rushed there and saved the informant and his brother. The brother of the informant Rupendra Kumar was rushed to government hospital at Khatauli for treatment and was referred to district hospital, Muzaffar Nagar. After admitting his brother at Muzaffar Nagar, the informant lodged the FIR on the same day at 12:10 PM.
Counsel for the applicant has stated that there is a cross version to the FIR which was instituted subsequently at FIR on 20.08.2022 regarding the same date and time of the incident.
Counsel has further stated that at this point of time, it cannot be ascertained as to which party was the aggressor, as such, the applicant is entitled for anticipatory bail.
Counsel has also stated that the applicant is 55 years old and one of the co-accused Charan Singh, who happens to be his father, is 78 years of age, as such, he is entitled for anticipatory bail on this ground also.
The Radiologist reported that multiple radio opaque shadows of variable sizes of metallic density are seen in the Rt Iliac region. Fracture of right iliac crest bone. In the supplementary report, the injury no1 was found to be grievous in nature. The surgery was undertaken and foreign bodies were removed.
Counsel for the applicant has also stated that the informant has suppressed the genesis as he cooked up a story later on that there were radio opaque shadows seen on the body of Rupendra Kumar.
Counsel for the applicant has further stated that there are general allegations against all the accused persons and the co-accused Nitin Rathi has already been granted anticipatory bail.
Per contra, counsel for the informant as well as AGA have vehemently opposed the anticipatory bail prayer of the applicant on the ground that the anticipatory bail application of co-accused Nitin Rathi has been dismissed as an infructuous vide order dated 31.5.2023. He was granted anticipatory bail as an interim measure vide order dated 4.4.2023 but the same has not been confirmed.
Counsel has argued that the injury report indicates that injury no1 was grievous in nature. The cross-FIR instituted after moving an application u/s 156(3) Cr.P.C by the son of the co-accused Sukhpal indicates that the applicant and other co-accused persons were very much present at the place of occurrence at that time.
A bare perusal of the FIR indicates the presence of the applicant at the place of occurrence.
The Court noted that the very first argument of the counsel for the applicant does not hold good on the ground that the anticipatory bail application of the co-accused Nitin Rathi was granted anticipatory bail as an interim measure till the pendency of investigation vide order dated 4.4.2023 and the said anticipatory bail application has been dismissed as infructuous by the coordinate Bench of this Court vide order dated 31.5.2023. The FIR is prompt as the informant had rushed to save the life of his brother Rupendra Kumar and admitted him in a hospital and then had lodged the FIR the same day and also taking into consideration the injury report of injured person Rupendra Kumar. The cross FIR further fortifies the prosecution allegation that the applicant was present at the place of occurrence.
“I have also gone through the judgement of Apex Court passed in Subramani (supra) referred by the counsel for the applicant and finds that the said judgement does not apply to the case as it is regarding the criminal appeal whereby the right of private defence is said to have been exercised by the accused therein. The case of the applicant is not of the right of private defence.
Considering the rival submissions advanced by the counsel for the parties and the judgement of Apex Court passed in Subramani (supra) and the judgement of the Court passed in Shivam (supra), I do not find it a fit case to grant anticipatory bail in the case”, the Court observed while rejecting the bail application.