The Allahabad High Court has granted conditional bail to Kamal Vir, accused of murder by shooting due to old rivalry in Moradabad.
A Single Bench of Justice Siddharth passed this order while hearing a Criminal Misc Bail Application filed by Kamal Vir.
This is the second bail application of the applicant. The first bail application of the applicant was rejected by the court on 08.01.2024 by the court.
The allegations in the FIR are that because of old enmity named accused, Amit Kumar, Pushpendra, Aniket, Prabhakar and others, came at Parshvanath colony, Moradabad at about 06:00 pm and caused murder of Anuj Chaudhary by firing on him.
At the time of incident, Puneet Chaudhary, who was along with Anuj Chaudhary at that time, also suffered gunshot injury.
Hence, FIR was lodged by Sandeep Singh on 10.08.2023 at 20.49 hours at PS- Majhola, District- Moradabad.
Counsel for the applicant submitted that the applicant was implicated in the case on 01.11.2023 on the basis of Section 120-B IPC and was assigned the role of conspirator. Thereafter he was implicated in one case under Section 7/25 of Arms Act and another case under Section 3(1) of UP Gangsters and Anti-Social Activities (Prevention) Act, 1986.
Not only this, a detention order dated 03.12.2023 was passed by the District Magistrate under Section 3(2) of the National Security Act. The detention order under the National Security Act was challenged before the court by means of Habeas Corpus Writ Petition which was allowed by the order dated 28.02.2024 on the ground that the order of detention was illegally passed and there was no need of the same in the given facts and circumstances of the case.
Senior Counsel for the applicant has submitted that the applicant is not named in the FIR. The named accused were Amit Kumar, Pushpendra, Aniket, Prabhakar and other unknown accused. FIR was lodged under Section 302/307 IPC by Sandeep Singh and there is no allegation in FIR regarding commission of alleged offence in pursuance of any conspiracy. Co-accused, Satendra Singh, who was implicated in the case subsequently on the role of being conspirator, has already been enlarged on bail on 22.02.2024.
The allegation against the applicant is that the applicant and other co-accused, Lalit Kaushik, took a loan of Rs 70 lacs from the deceased, Anuj Chaudhary and were not willing to return the same to Anuj Chaudhary. Anuj Chaudhary was pressurizing them to return the money and therefore they hatched conspiracy and got him murdered by hiring killers.
It has been submitted that there is no documentary evidence or any other evidence in this regard. The applicant had purchased a plot of land in Sector-12 in the year 2017 after taking a loan of Rs 16 lacs from LIC which he had repaid. There is no evidence of the applicant taking a loan of Rs 70 lacs from the deceased, Anuj Chaudhary. The applicant is a teacher in Junior High School.
It is also clear that the prosecution case is inconsistent. In the FIR role of causing fatal firearm injuries to the deceased have been assigned to the named accused, Amit Kumar, Pushpendra, Aniket and Prabhakar, while the mother of deceased has introduced three unknown accused and has assigned the role of causing murder of the deceased to them. Neither the mother of the deceased nor the informant had named the applicant and similarly situated three co-accused. For this reason co-accused, Satendra, was enlarged on bail by the coordinate Bench of the court.
It has also been stated that the applicant is delaying the trial and he is a very influential person. He is avoiding appearance before the court and not permitting the trial to proceed.
After hearing the rival submissions, the court found that in the case the bail application is being opposed not by the informant but by the mother of the deceased.
The Court noted that,
Senior Counsel for the applicant has relied upon the judgment of the Apex Court in the case of Gangadhar Janardan Mhate vs. State of Maharashtra and Others, 2004 (7) Supreme 491, and has submitted that right of opposing the proceedings initiated by accused is only for informant who is required to be heard. In the case law relied upon by the Senior Counsel for applicant transfer of investigation was sought from one agency to other wherein the Apex Court held that notice and opportunity of hearing was required to be given to the informant.
The right of the victim has been inserted in the Criminal Procedure Code, 1973 by an amendment i.e, Act 2005, which has been mentioned in the definition clause-2(wa)- “a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir.”
In the light of the aforesaid judgments, the victim has the right to oppose the above said bail application before the court of law.
The Court further found that the implication of the applicant has been made on the basis of his alleged role of conspirator under Section 120-B IPC. To bring home the charge of conspiracy within the ambit of Section 120-B IPC, it is necessary for the prosecution to prove that there was agreement between the accused for doing an unlawful act; association or relation to hatch a conspiracy is not enough to establish the intention to kill the deceased.
“In the case, the applicant and three others, namely, Satendra Singh, Mohit Chaudhary and Lalit Kaushik, have been implicated as conspirators. On 29.09.2023 with regard to the incident which took place on 10.08.2023, co-accused, Satendra Kumar, has already been enlarged on bail and Bail Cancellation Application filed against the same has already been dismissed on 27.08.2024.
The Apex Court has remanded his bail application to this court granting him interim bail. There is no evidence against the applicants except the confessional statements of applicant and co-accused in police custody which is hit by section 25 of the Evidence Act.
With regard to the arguments that the applicant is an influential person and is preventing jail authorities to produce him before the trial court the court finds that had the applicant been such an influential person he would not have been implicated under National Security Act and an under trial is always at the mercy of the jail authorities for his production before the trial court. The applicant has been in jail since 01.11.2023. In view of the above consideration, the court is of the view that there is no reliable evidence against the applicant with the prosecution as yet. Hence, he deserves to be enlarged on bail,” the Court observed while allowing the bail application.
The Court ordered that,
Let the applicant, Kamal Vir, involved in Case under Sections- 302, 307, 120-B IPC, Police Station- Majhola, District- Moradabad, 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 subject to following conditions. Further, before issuing the release order, the sureties are verified.
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. 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 applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 CrPC 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 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 CrPC. 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
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