Allahabad High Court
Pankaj Mishra Alias Pankaj Kumar Mishra vs State Of U.P. Thru. Prin. Secy. Home Lko. on 6 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9923 of 2022 Applicant :- Pankaj Mishra Alias Pankaj Kumar Mishra Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Ramakar Shukla Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard ShriRamakar Shukla, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the accused/applicant- Pankaj Mishra Alias Pankaj Kumar Mishra for grant of bail, in Case Crime No.345 of 2019, under Sections 147, 148, 149, 302/34 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station Amethi, Distict Amethi, during trial.
This is the second bail application moved on behalf of the applicant as his first bail application was rejected by a co-ordinate Bench of this Court vide order dated 12.07.2021 vide order dated 3991 of 2020.
Learned counsel for the applicant submits that the first bail application of the applicant was rejected by co-ordinate Bench of this Court on 12.07.2021 and till than only one of the named co-accused Santosh Pandey was granted bail by co-ordinate Bench of this court and two accused persons, namely, Anil Kumar @ Dabang and Shivank @ Shivang Mishra, who were not named in the first information report, were granted bail. However, the circumstances have materially changed now as two other named accused persons, namely, Babban @ Dharmendra Mishra as well as Pappu Mishra have been granted bail subsequent to the rejection of the bail application of the applicant on 30.11.2021 and 25.03.2022 vide order passed in Bail No.6438 of 2021 and Criminal Misc. Bail Application No.14176 of 2021 respectively.
It is also submitted that the two accused persons, namely, Babban @ Dharmendra Mishra as well as Pappu Mishra, who have been granted bail after rejection of the bail application of the instant applicant-Pankaj Mishra Alias Pankaj Kumar Mishra were also having criminal history so the case of the instant applicant is identical to the three accused persons named in the first information report, namely, Santosh Pandey, Babban @ Dharmendra Mishra and Pappu Mishra and except the instant applicant, all the three accused persons have been granted bail by co-ordinate Benches of this Court. Thus, there is material change in the circumstances since rejection of the first bail application of the applicant.
Coming to the merits, learned counsel for the applicant submits that in the first information report lodged by the informant Ram Ashrey Pandey, the role of indiscriminating firing by the accused persons including the instant applicant has been levelled. However, having regard to the texture of the first information report as well as the statement of the informant recorded under Section 161 Cr.P.C., he does not appear to be an eye witness of the incident and even if his statement is believed, it would be evident that he has only seen the accused persons running away from the scene.
It is further submitted that so far as the two eye witnesses named in the first information report, namely Rakesh Mishra and Virendra Mishra are concerned, they are planted witnesses as without there being any reason, their statement have been recorded on 14.11.2019 while the incident is of 04.09.2019. Thus, there is no explanation as to why the statement of these witnesses have been recorded after 70 days of the incident. Moreover, one of these witnesses, namely Virendra Mishra is an accused in the first information report lodged by the instant application pertaining to murder of his brother Vinay Mishra which was registered at Case Crime No.0638 of 2017 at Police Station Munshiganj, District Amethi, a copy of which has been placed at page no.51 of the paper book.
While referring to the statement of these two alleged eye witnesses, namely, Virendra Mishra and Rakesh Mishra, it is vehemently submitted that they could not be the eye witnesses on the score that in the statement of Virendra Mishra, general allegations have been levelled against all the accused persons of firing and no specific role has been assigned to the instant applicant while in the statement of Rakesh Mishra, the role of only assaulting with lathi has been assigned to the instant applicant and co-accused Babban @ Dharmendra Mishra. Therefore, it is evident that these witnesses are not the eye witnesses and they have been planted as they were inimical towards the applicant.
It is also submitted that the applicant is in jail in this case since 22.09.2019 and the trial of the case is not proceeding at a pace at which it should have been. Criminal history of four cases is being alleged against the applicant, however, the same has been explained in para 25 of the applicant and in three of such cases, the applicant has been granted bail while the fourth case is with regard to the non cognizable report pursuant to which no process has been received by the applicant and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.
Learned A.G.A. on the other hand submits that the applicant has committed a heinous offence in a brutal way but could not dispute the fact that the role of the instant applicant is identical to the role of the co-accused persons, namely, Santosh Pandey, Babban @ Dharmendra Mishra and Pappu Mishra who have been granted bail by co-ordinate Benches of this Court.
Having heard learned counsel for the parties and having perused the record, it would be evident that when the first bail application of the instant applicant-Pankaj Mishra Alias Pankaj Kumar Mishra was rejected by co-ordinate bench of this Court, at that point of time, the bail application of named accused, Santosh Pandey and two co-accused persons who were not named in the first information report, namely, Anil Kumar @ Dabang and Shivank @ Shivang Mishra was granted by co-ordinate Benches of this Court. It has not been disputed by learned A.G.A. for the State that the role of co-accused persons, namely Santosh Pandey, Babban @ Dharmendra Mishra and Pappu Mishra, who are all named in the first information report, is identical to the role of instant applicant-Pankaj Mishra Alias Pankaj Kumar Mishra. The law in this regard is well settled that when the case of prosecution is based on direct evidence, the motive loses its significance and no differentiation can be made in such type of cases when otherwise the role of the named accused persons is same. So far as the instant applicant-Pankaj Mishra Alias Pankaj Kumar Mishra is concerned, having regard to the statement of eye witness Rakesh Mishra, his case appears to be at better footing than other named co-accused person as the witness Rakesh Mishra has attributed the role of assaulting with lathi and danda to the instant applicant and Babban @ Dharmendra Mishra. Babban @ Dharmendra Mishra has also been granted bail by co-ordinate Bench of this court. The accused persons who were granted bail were also having few criminal cases pending against them. The post mortem report of the deceased would reveal that fire arm injuries have been found on the person of deceased alongwith some lacerated wounds and according to the opinion of the doctor, the death of the deceased has been caused due to shock and hemorrhage as a result of ante mortem fire arm injuries. The applicant is detained in jail in this case since 22.09.2019. Charge-sheet in this case has also been submitted and the presence of the applicant could be secured before the trial court by placing adequate conditions.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case and also on the principles of parity, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed.
Let the accused/applicant- Pankaj Mishra Alias Pankaj Kumar Mishra involved in above-mentioned case, be released on bail on his furnishing a personal bond with two heavy sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.
Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case.
Order Date :- 6.1.2023 Saurabh