Nazira and Others vs State of U.P.

Virendra Saran, J.—Notice of this application was given to the Government Advocate on 4-9-92. 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 oase and directed that the case be laid before another Hon''ble Judge. On the same date the Hon''be Acting Chief Justice cominated me by name to hear the bail application. The file was received in my Court on 29-9-92 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 be taken 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 14-10-92 showing the name of Sri Murlidhar Misra as counsel for the complainant. When the oase was taken up on 14-10-92 Sri Murlidhar Misra appeared and informed that this case was again listed before Hon''ble 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 messanger to Sri Murlidhar Misra on 13-10-92 that the case will be taken in my Court on 14-10-92 but Sri Murlidhar Misra refused to acknonwledge 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 15-10-92.

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 15-10-92, 16-10-92, 20-10-92 and today at great length and have perused the record.

There are 28 accused in this ease of whom 16 are the Applicants in this bail application. All the aecused 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, Asharaf, Aslm and Akram are son of Applicant Shabbir, Raizwan is son of Applicant Sattar and Applicant Anis and Shakil are sons of Applicant Gulzar.

So far as deoeased Aslam is concerned, the postmortem report shows that he sustained a single gun shot injury and there was no other Injury of any kind on bis person. The role assigned to the Applicants is that they had attacked the complainant''s 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 own case of the prosecution that the two p.rties were engaged in exchanging blows at the house of Dr. Akhtar (according to the defence case at the house of accusued Gulzar) the deceased appeared in order to save and loosing 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 paces 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 unlaw assembly leaves a 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.

One cannot over look the fact that there are as many as 28 accused in this case and the learned Counsel for the Applicants has pointed out that the accused belonged to the same family and some of them might have been falsely added as accused on account of close relationship with the other accused It is noteworthy that none of the present Applicants have received any injury which may lend assurance regarding their participation in the incident.

The learned Counsel for the Applicants has submitted that the complaint''s side had attacked the accused side who had the right of private defence He further pointed out that three persons of the complaint''s party namely Yusuf, Fazla and Matlab were found at the house of accused Gulzai and he submitted that the allegation in the FIR that these three persons had been taken by the accused themselves to their own house is a rouse to camouflage the own guilt of the complaint''s side. In reply Sri Murlidhar Misra the learned Counsel for the complaint submitted that the number and the nature of injuries outweigh the nature and number of injuries on the side of the accused He submitted that the complainaint''s side had inflicted some of Injuries on the accused to save themselves while some of the injuriess of the accused are maaufactured.

I have given my anxious consideration to the facts and circumtance of the case. There are injuries on both sides. Besides the deeased, who received a solitary gun shot injury, there are seven other injured on the side of the complainant whereas on the side of the accused six of them have received injuries. The injuries on either side show that fire arms, cutting weapons and blunt weapons were used and even on the side of the accused there are 35 injuries and if we add multiple injuries the number of injuries would be 42 on the side of accused whereas there are 106 injuries on the injured on the side of the prosecution. The injuries on the side of the accused are also on vital parts of their body. There are claims and counter claims of aggression.

Large number of cases have been cited at the Bar which I have gone through and have kept in my mind while dcciding this bail application. These cases are on the commencement, continuation and extent of right of private defence. Sri Murlidhar Mishra has also placed some orders passed by some other Hon''ble Judges of this Court rejecting individual bail applications Each case has its own peculiar features and has to be decided on its own facts I will not embark upon discussing rulings after rulings in this order as the same may prejudice the trial one way or the other In bail applications such views should not be expressed which may prejudice the trial. The evidence is yet to be recorded and it would be for the trial court to decide the question of right of private defence after the evidence is recorded.

Lastly, it has been argued by the learned Counsel for the complainant that the Applicants were involved in some cases. In a case of exercise of right of private defence it is immaterial whether the accused was involved in any earlier case because even an accused who is involved in any other previous case has the right to preserve his own life in the exercise of the right of private defence. It cannot be argued, that mere involvement in any other case will deprive the accused of his right of private defence or that the law requires such an accused to allow his life or limbs to be lost by submitting to aggression.

Having given my anxious consideration to ail the facts and circumstances of the case, I am of the opinion that a case for grant of bail is spelled out.

The Applicants Nazira, Shabbir Gulzar, Sattar, Mahmood, Nizar, Abrar, Rafiq/Sharf, Aslam, Akram, Rizwan, Yasin, Rafi. Anis and Shakil, involved in Crime No. 51 of 1992, u/s 147, 148, 149, 307, 302, 323, 324, 325, 326, 452, 504 IPC PS Garhi Pukhta, District Muzaffarnagar shall be released on bail, on each of them furnishing a personal bond and two sureties, each in the like amount, to the satisfaction of CJ.M. Muzaffarnagar.