Allahabad High Court
Vijay Pratap Singh Alias Gallan vs State Of U.P. Thru. Addl. Chief Secy. ... on 13 May, 2022
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- CRIMINAL MISC. BAIL APPLICATION No.268 of 2022 Applicant :- Vijay Pratap Singh alias Gallan Opposite Party :- State of U.P. Thru. Addl. Chief Secy. Home Lko. Counsel for Applicant :- Pankaj Shukla, Arun Sinha Counsel for Opposite Party :- G.A.,Ram Singh,Sushil Kumar Singh Hon'ble Rajesh Singh Chauhan,J.
Heard Sri S.K. Kalia, learned Senior Advocate, assisted by Sri Pankaj Shukla and Sri Siddharth Sinha, learned counsel for the applicant as well as Sri Vishnu Dev Shukla, learned AGA and Sri Sushil Kumar Singh, learned counsel for the informant/complainant.
As per Sri Kalia, the present applicant is in jail since 24.10.2021 in Case Crime No.0257 of 2021, under Sections 302 & 120-B of IPC, Police Station Munshiganj, District Amethi.
Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged. Attention has been drawn towards the FIR wherein allegations have been levelled against three accused persons, namely, Vijay Pratap Singh, the present applicant, Uday Pratap Singh and one unknown vehicle Driver as such vehicle was used to commit the crime.
As per prosecution story so narrated in the FIR, on 17.10.2021 at about 5:00 PM, the aforesaid accused persons have killed the husband of the informant by one vehicle, number plate of such vehicle was covered with opaque polythene. As per FIR, the victim had given his statement to the Doctor at the time of getting treatment.
Sri Kalia has drawn attention of this Court towards Annexure No.3 to the bail application, which is a statement of the Doctor recorded on 05.12.2021 wherein the Doctor has said that she was only treating the patient as she (Doctor) has not noticed any of the statement of the victim/patient. Therefore, Sri Kalia has submitted that the said version of the FIR is false. Further attention has been drawn towards Annexure No.4 of the bail application, which is an inquest report started at 1:45 on 18.10.2021 and completed at 2:30 on the same date i.e. 18.10.2021. There are five panch witnesses; out of them, two witnesses, namely, Brij Bhan Singh and Abhimanyu Singh are the eye witnesses and as per the opinion of Panch, the victim died on account of accident. Sri Kalia has submitted that no one was named by the alleged eye witnesses till preparation of the inquest. Further attention has been drawn towards the post-mortem report to show the ante-mortem injuries. The victim sustained 13 ante-mortem injuries and cause of death is ante-mortem injuries as indicated in the post-mortem report. Sri Kalia has submitted with vehemence that after the date of incident i.e. 17.10.2021, the statement of the informant/ complainant was recorded on 18.10.2021 (Annexure No.7) wherein she (informant) has levelled allegations against the present applicant and his brother Uday Pratap Singh, co-accused, regarding personal rivalry on account of Panchayat Election. She has stated that she is apprehensive that her husband has been killed under the guise of accident as it was not accident but the murder. She has stated that she could not see the number of the vehicle as the number plate was covered with opaque polythene.
Sri Kalia has submitted that all of sudden on 21.10.2021, the informant/complainant recorded her supplementary statement (Annexure No.8) reiterating her allegations against the present applicant and his brother Uday Pratap Singh. However, she has stated that after the incident in question, her cousin brother-in-law (Devar) Brij Bhan Singh, who is eye witness, is appearing very apprehensive and she came to know that he is aware about some relevant information, therefore, if his statement is taken, concrete information may be received. On that, statement of eye witness Brij Bhan Singh was recorded on the same date i.e. 21.10.2021 (Annexure No.11) wherein he has narrated the incident dated 17.10.2021. He has submitted that he has seen that when his cousin brother Santosh Singh (Fauji), the deceased, was coming from Munshiganj from his motorcycle, one four wheeler i.e. ''Pickup' hit his brother, resultant thereof he fell down on the earth. Thereafter, such vehicle ran down his brother. Said four wheeler ''Pickup' firstly put reverse gear and ran over his brother, then put forward gear and again ran over his brother. The number of vehicle was UP 33 T 9114. Driver of the vehicle was one Shyam Bihari Shukla son of Chandi Dutt Shukla. On being asked by the Investigating officer as to why he had not disclosed the number of the vehicle earlier while lodging the FIR, he clarified that on the date of incident, he was under serious depression and was unable to accept as to how this accident has taken place. Besides, he was apprehensive also but now he is in a position to apprise the correct story to the prosecution. Sri Kalia has submitted that the statement of alleged Brij Bhan Singh was recorded by the prosecution so as to improve the prosecution story inasmuch as if the number of vehicle was noticed by him or any one, at least such information would have been given at the time of lodging the FIR or at the time of preparation of inquest, therefore, this story may not be believed.
Sri Kalia has submitted that on the basis of aforesaid statement of eye witness, the Driver of the vehicle Shyam Bihari Shukla was arrested and his statement was recorded on 24.10.2021 (Annexure No.15). In his statement, the said Driver Shyam Bihari Shukla has confessed his guilt and explained the modus operandi for committing the crime in question. He has informed that for killing Santosh Singh alias Fauji, the present applicant had purchased one ''Pickup' vehicle for Rs.1,85,000/- from one Pradeep Jaiswal of Sangrampur. After making payment, said vehicle was transferred in his name. Not only the above, the present applicant had purchased two mobile SIMs and phones of Lava Company from Eish Mobile Centre for Rs.2,200/- and one phone was being used by the present applicant and another phone was being used by the Driver. By means of aforesaid two phones, location of the victim/deceased Santosh Singh was tracked and he was killed under the guise of accident. It was plan of the present applicant that the murder of Santosh Singh alias Fauji should be seen like accident. He informed the mobile numbers. He confessed that after executing the crime in question, he ran away from the spot and he was told that identity of the vehicle should be finished by cutting said vehicle but before doing such thing, he has been arrested. On his pointing out, the vehicle was recovered and the mobile phone which he had thrown in one drainage was also recovered. Thereafter, mobile numbers were sent to the experts to know the complete details. Sri Kalia has further submitted that on the basis of confessional statement of the Driver, which is extra judicial confession under custody of the police, the present applicant may not be implicated. Sri Kalia has drawn attention of this Court towards the order dated 25.02.2022 whereby co-accused Uday Pratap Singh has been granted bail by this Court in Criminal Misc. Bail Application No.15127 of 2021. Sri Kalia has submitted that since the allegations in the FIR against both the aforesaid accused persons are the same, therefore, on the basis of principles of parity, the present applicant may be enlarged on bail. Sri Kalia has submitted that the present applicant is having criminal history of ten cases and co-accused Uday Pratap Singh was also having criminal history of three cases, therefore, on that score also, this is a case of parity. He has further submitted that charge sheet has already been filed, therefore, there is no apprehension of absconding or tampering the evidence. He undertakes on behalf of the applicant that the applicant shall co-operate with the trial proceedings and shall not misuse the liberty of bail, if so granted by this Court. Further, the applicant shall abide by all terms and conditions of the bail order.
Per contra, Sri Vishnu Dev Shukla, learned AGA and Sri Sushil Kumar Singh, learned counsel for the informant/complainant have opposed the prayer for bail. Both the aforesaid counsels have submitted that this is a gruesome murder having clear cut motive in the mind of the accused persons, therefore, the present applicant may not be released on bail.
Sri Sushil Kumar Singh, learned counsel for the informant/complainant has submitted that the case of the present applicant is not on the similar footing with the case of co-accused Uday Pratap Singh, who has been granted bail, for the reason that the co-accused Uday Pratap Singh was having criminal history of three cases, out of which he has been exonerated by the learned trial court in two cases. Whereas the present applicant is having criminal history of ten cases, out of which he has been acquitted in four cases but remaining six cases are very serious wherein either the present applicant is on bail or his bail application is pending before the learned court concerned. Sri Singh has also submitted that however, in para-41 of the bail application, detail of criminal history has been given but such criminal history has not been properly explained inasmuch as all relevant papers to that effect have not been enclosed with the bail application.
Sri Singh has drawn attention of this Court towards Annexure No.CA-1 of the counter affidavit dated 15.02.2022 to show the copy of CCTV footage of the occurrence along with required certificate to that effect, which are issued under Section 65-B of the Indian Evidence Act. Thereafter, he has drawn attention of this Court towards CA-2, which is a copy of pen drive with photographs and statement of the injured. Sri Singh has submitted that SIM card and cell phone were purchased by the present applicant on the ID of one Smt. Vimla Devi wife of Jhurahi. Statement of Smt. Vimla Devi has been enclosed with the bail application as Annexure No.17 of the bail application wherein she has categorically stated that Vijay Pratap Singh alias Gallan Singh, the present applicant, had taken her ID and purchased two SIMs from one Pradeep Jan Subidha Kendra in her presence. Annexure No.CA-3 of the counter affidavit is the statement of the shop owner Pradeep Kumar Maurya, who has stated that Vijay Pratap Singh alias Gallan Singh, the present applicant, had purchased two SIM cards from his shop on the ID of Smt. Vimla Devi on 26.08.2021. The receipts of purchase have also been enclosed with the counter affidavit. Annexure No.CA-4 is a call detail report, which is a part of the case diary. Such report indicates that both the SIM cards are consisting the call details of the period in question. Sri Singh has further drawn attention of this Court towards Annexure No.CA-5, which is a statement of the earlier owner of the ''Pickup' vehicle Pradeep Kumar Jaiswal. Such person Pradeep Kumar Jaiswal has categorically stated that on account of compelling reasons, he sold out his vehicle to Vijay Pratap Singh alias Gallan Singh for Rs.1,85,000/-. Such amount was given by Vijay Pratap Singh alias Gallan Singh, the present applicant and after receiving such amount, he handed over the vehicle to Shyam Bihari Shukla, who came to his place along with Vijay Pratap Singh alias Gallan Singh on 12.10.2021.
Sri Sushil Kumar Singh has submitted that the aforesaid facts and circumstances clearly indicate the modus operandi and planning of the present applicant inasmuch as he purchased two SIM cards before the incident in question; one was being used by the present applicant and another was being used by the vehicle Driver Shyam Bihari Shukla. The vehicle in question was purchased on 12.10.2021 and the husband of the informant was killed on 17.10.2021 and such killing was disguised accident. Therefore, Sri Singh has submitted that if the aforesaid chain of events is taken on its face value, it would be clear that the present applicant was the main conspirator to eliminate the husband of the informant/complainant on account of political rivalry regarding Panchayat Election. In the entire chain of events, co-accused Uday Pratap Singh was not in picture, however, he might have been actively involved. Therefore, the bail application of the present applicant may be rejected on merits and he may not be extended the benefit of principles of parity.
I have heard learned counsel for the parties and perused the material available on record.
At the very outset, I would like to indicate the criminal history of the present applicant as indicated in para-41 of the bail application, which is as under:-
"(i). Case Crime No.-1120/2014, U/s. 147, 148, 149/188, 307, 302, 336, 382, 353, 332, 427, 504, 506/120 IPC, P.S. -Amethi, District Amethi (on bail vide order dated 21.7.2015).
(ii) NCR No.-10/2012, U/s. 323, 504, 506 IPC, P.S. Munshiganj, District Amethi (No investigation).
(iii) Case Crime No.-327/2001, U/s. 147, 323 IPC, P.S. Munshiganj, District Amethi (pending).
(iv) Case Crime No.-83/1995, U/s. 307 IPC, P.S. Munshiganj, District Amethi (acquitted vide order dated 23.6.2000).
(v) Case Crime No.-212/1992, U/Ss. 457, 380 IPC, P.S. Munshiganj, District Amethi (acquitted).
(vi). Case Crime No.-68/1991, U/s. 363, 366 IPC, P.S. Munshiganj, District Amethi (acquitted vide order dated 26.4.2000).
(vii) Case Crime No.-93/1991, U/Ss. 394/506 IPC, P.S. Munshiganj, District Amethi (acquitted vide order dated 8.6.1993).
(viii) Case Crime No.-95/1991, U/s. 3 U.P. Gunda Act, P.S. Munshiganj, District Amethi (got over).
(ix) Case Crime No.-33/1990, U/Ss. 307 IPC, P.S. Dhammaur, District Amethi (on bail).
(x) Case Crime No.-207/2021, U/s. 323, 504 IPC and Sec.-3(1)(Da) 3(1)(Gha) & 3(2)(Va) SCST Act, P.S. Munshiganj, District Amethi (Bail Application is pending consideration before the learned court)."
I had occasion to deal with one similar matter in Criminal Misc. Bail Application No.11033 of 2018, Shiv Sagar alias Pankaj Mishra Vs. State of U.P., decided on 07.05.2022, wherein it has been observed as under:-
"Therefore, it is clear that after getting bail in first criminal case the present applicant has committed several offences, so it would be appropriate to observe here that he has misused the liberty of bail granted by the competent court of law.
When any accused person is released on bail in his/her first criminal case, he/she gives his/her undertaking before the competent court concerned that he/she shall not misuse the liberty of bail. During period of bail if he/she again commits any offence and was arrested, he/she files the next bail application in such crime case making specific and categorical submission and undertaking that he/she shall not misuse the liberty of bail then, the competent court considering the aforesaid undertaking grants bail. Again during the period of bail such accused person commits another offence and obtains bail, it would mean that he/she has got no respect towards the order of the Court whereby he/she has been granted bail and at the same time he/she does not care about his/her undertaking that he/she shall not misuse the liberty of bail.
In nutshell, the repeated offender who repeats any crime while he/she is on bail in earlier case/cases should not be granted bail as he/she may again misuse the liberty of bail therefore instead of granting bail, to me, the direction to expedite the trial should be issued.
The Hon'ble Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 has observed that 'the bail is a right and denial is an exception' but it does not mean that the bail should be granted in every case. Further, at the time of considering the bail application of an accused it is also necessary for the Judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct.
The Hon'ble Apex Court in a recent judgment of Ramesh Bhavan Rathod (supra) has observed in paragraphs 22 and 32 as under:
"22. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav Vs. State of U.P. MANU/SC/1208/2014 : (2014) 16 SCC 508, this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed:
17. Coming to the case at hand, it is found that when a stand was taken that the 2nd Respondent was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd Respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the 2nd Respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.
32. Our analysis above would therefore lead to the conclusion that there has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths. This is clearly a case where the orders passed by the High Court suffered from a clear perversity."
(emphasis supplied) The chain of events so demonstrated by Sri Sushil Kumar Singh, learned counsel for the informant/complainant is prima facie such which discloses that the present applicant was more actively involved than the co-accused Uday Pratap Singh inasmuch as the SIM cards/mobile phones were purchased by the present applicant and the vehicle was purchased and handed over to one Shyam Bihari Shukla by the present applicant. The deceased was run over by the said vehicle and prima facie, it might be a murder in disguise.
However, it is made clear that the aforesaid observations of this Court may not affect the trial in any manner whatsoever inasmuch as the learned trial court shall conduct and conclude the trial strictly within four corners of the law.
Without entering into the merits of the issue, considering the rival submits, material available on record and the chequered criminal history of the present applicant, I do not find it a fit case to grant bail on the basis of parity.
In view of the above, the present bail application fails and is rejected.
Before parting with, it is expected that the trial shall be concluded with expedition. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded at the earliest as provided under Section 309 Cr.P.C.
[Rajesh Singh Chauhan,J.] Order Date :- 13.5.2022 RBS/-