Allahabad High Court
Manoj Upadhyaya @Manoj Pathak @ Vijay ... vs State Of U.P. on 7 May, 2022
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED High Court of Judicature at Allahabad (Lucknow) ********************** Case :- CRIMINAL MISC. BAIL APPLICATION No.-11105 of 2021 Applicant :- Manoj Upadhyaya @Manoj Pathak @ Vijay Kumar Tiwari Opposite Party :- State of U.P. Counsel for Applicant :- Vikas Singh, Arun Sinha, Bhupendra Pratap Singh, Ram Chandra Singh Counsel for Opposite Party :- G.A.,Ashok Kumar Srivastava Hon'ble Rajesh Singh Chauhan, J.
Heard Mr. Arun Sinha, learned counsel for the applicant, Mr. Rupendra Kumar Singh, learned Additional Government Advocate appearing on behalf of the State and Mr. Ashok Kumar Srivastava, learned counsel for the complainant/informant.
As per Mr. Sinha, the present applicant is in jail since 8.11.2018, in Case Crime No.302 of 2016, under Sections 147, 148, 149, 302, 307 & 404 I.P.C. Police Station-Baaghrai, District-Pratapgarh. 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.
As per the prosecution case, in the mid night of 11.12.2016 the complainant along with his brother Rajesh Singh, Dheeraj Singh, Sonu Singh, Poonam Singh, wife of Rajesh Singh, Harshvardhan Singh son of Rajesh Singh were returning to his home after attending an invitation in Tiwari Mahamadpur. When they reached at Kamsin Tiraha then the accused persons armed with fire arms and bombs attacked on them. It is further mentioned in the first information report that due to the firing Rajesh Singh died on spot and Dheeraj Singh and Sonu Singh received grievous injuries. It is also alleged in the first information report that during commission of crime the accused persons also looted a licensed pistol and cash of Rs.1,50,000/- and some papers of the deceased.
Learned counsel for the applicant has submitted that on the complaint submitted by informant/complainant as many as 18 persons including the present applicant has been arrested.
Learned counsel for the applicant has submitted that an unexplained delay of more than 14 hours in lodging of first information report renders the prosecution story wholly unreliable particularly when the informant alleges himself to be eye witness.
It has been submitted on behalf of the applicant that the complainant, deceased Rajesh Singh and alleged injured Dheeraj Singh are notorious criminals and there is long criminal history to their credits. The aforesaid persons are also history-sheeters and due to their criminal activities, the deceased and alleged injured persons have been caused injuries by some unknown persons in dark hours of winter night and no one could identify the actual assailants. It is also submitted that the complainant was not accompanied with the deceased and alleged injured persons at the time of alleged incident and when he came to know about the aforesaid incident then he lodged a false first information report against those persons, with whom he is on inimical terms, leveling therein totally false and fabricated allegations, just to settle the score of enmity.
It is also submitted that neither the complainant nor the wife and son of the deceased have received any type of injury in the alleged incident. This fact itself creates doubt on their presence at the place of incident at the time of alleged incident.. The alleged injured Sonu Singh has also denied the presence of complainant and the wife and son of deceased at the place of incident at the time of alleged incident. From perusal of the statements of alleged injured persons namely Dheeraj Singh and Sonu Singh, it is clear that the alleged incident took place in foggy winter night and due to the darkness and fog the accused persons could not be identified by them. From perusal of the statements of alleged injured persons, it is clear that their statements have been recorded after about one month of the alleged incident when they were medically fit.
It is also submitted that the injury reports of the alleged injured persons reveal that they were brought by Sanjay Singh and Kamlesh Pratap Singh for their medical examination not by the complainant, Poonam Singh and Harsh Vardhan Singh, who have claimed themselves to be the eye witnesses of the alleged incident. This fact itself creates doubt on the presence of complainant, Poonam Singh and Harsh Vardhan Singh at the place of incident at the time of alleged incident.
From perusal of the first information report as well as the statement of the complainant, recorded U/S-161 Cr.P.C., it is clear that no specific role has been assigned to the applicant and only general role has been assigned to all the alleged accused persons. From perusal of the post mortem report of deceased, it is clear that the deceased had received only two injuries on his person and he died because of the injury no.1, which is a fire arm injury, and the prosecution is silent on this point that who is author of said injury. It has also been submitted that on 28.03.2017, the wife of deceased namely Smt. Poonam Singh had given an application before the Deputy Inspector General of Police, Allahabad Range, Allahabad, mentioning therein that the statements, U/S-161 Cr.P.C. of the witnesses, including her, have not been recorded correctly, that's why she as well as the other witnesses are giving their statements on affidavit, alongwith the application.
Learned counsel for the applicant has submitted that this Court has granted bail to the co-accused Santosh Vaish in Bail No.7415 of 2017 and Rohit Singh in Bail No.8679 of 2017 vide order dated 5.2.2018. The complainant/informant has challenged the bail order of co-accused Rohit Singh before Hon'ble Apex Court by filing Special Leave to Appeal (Criminal) No.5018 of 2018 contending that the said accused while on bail in the present case has committed two more serious offences. Therefore, the Hon'ble Apex Court vide order dated 06.09.2019 has observed that the Investigating Officer should immediately move application for cancellation of bail against the said accused before the High Court and if such application is filed, same shall be decided on merits.
Pursuant to the aforesaid direction of the Hon'ble Apex Court the application for cancellation of bail was filed before this Court bearing Bail No.9677 of 2019 and this Court vide order dated 27.01.2020 cancelled the bail of co-accused Rohit Singh.
Learned counsel for the applicant further submitted that the bail of co-accused Santosh Vaish was not assailed and such order is still maintained. He has further submitted that this Court has also granted bail to other co-accused persons namely Pankaj Pasi @ Pankaj Saroj in Bail No.1030 of 2018 vide order dated 9.2.2018 and to Jwala Singh @ Kuldeep Singh in Bail No.973 of 2018 vide order dated 8.2.2018. One more co-accused Pramod Kumar Singh has been granted bail vide order dated 16.2.2018, passed in Bail No.1169 of 2018, however, an application for cancellation of his bail is pending consideration. It has also been informed that this Court vide recent order dated 8.4.2022 rejected the bail application of one of the co-accsued Sunil Kumar Gupta @ Bachcha in Criminal Misc. Bail Application No.10805 of 2019, vide order dated 4.1.2022.
To summarize, learned counsel for the applicants has submitted that the bail order of the co-accused Santosh Vaish, Pakka Pasi @ Pankaj Saroj, Jwala Singh @ Kuldeep Singh is still intact, whereas the bail of Rohit Singh, Sunil Kumar Gupta @ Bachcha has been cancelled. He has further submitted that there may not be any parity in rejection of the bail order as the parity is considered for the bail orders granted in favour of the co-accused persons.
Therefore, on the basis of the aforesaid facts and considering the period of incarceration of the present applicant, he may be released on bail giving parity with the aforesaid co-accused persons who have been enlarged on bail by this Court. He has also submitted that there is no possibility to conclude the trial in near future, therefore, the present applicant may not be compelled for pre-trial detention as the same would be violative of Article 21 of the Constitution of India.
Learned A.G.A. as well as Mr. Ashok Kumar Srivastava, learned counsel for the complainant/informant have vehemently opposed the aforesaid bail application.
Mr. Srivastava has submitted that the applicant is a habitual criminal and is having a criminal history of as many as four cases including the present one.
Mr. Srivastava, learned counsel for the informant has submitted that eye-witness has fully supported the prosecution version. He has drawn attention of this Court towards the statement of Manoj Kumar Singh informant/complainant and Smt. Poonam Singh wife of the deceased, wherein the name of the present applicants have been taken. Further, the injured witnesses namely Sonu Singh and Dheeraj Singh also supported the prosecution case. He has also submitted that in similar circumstances the bail of co-accused Sunil Kumar Gupta @ Bachcha (Criminal Misc. Bail Application No.10805 of 2019) has been rejected by this Court and said co-accused was having similar role as the present applicant, therefore, the bail application of the present applicant may be rejected.
I have considered the submissions made by parties' counsel and gone through the records of the bail application available before me.
Learned counsel for the applicant has disclosed the criminal history of the present applicant in para 30 of the bail application of 3 cases including the present case. One Case Crime No.65 of 2017 has been registered under Section 174-A I.P.C., wherein he has been granted bail. Another Crime Case bearing No.231 of 2018 is registered under Section 3/25 Arms Act at the same Police Station wherein he has been granted bail. However, replying to the aforesaid contents of the bail application learned Additional Government Advocate has apprised that one more criminal case is pending against the accused applicant bearing Case Crime No.261 of 2017, under Sections 395, 427 I.P.C, Police Station Baghrai, District Pratapgarh. A complete chart of the criminal history of the present applicant has been enclosed as Annexure No.CA-4 wherein total four criminal cases have been shown. The present applicant has not explained the criminal history of the aforesaid Crime Case No.261 of 2017 inasmuch as no rejoinder affidavit has been filed.
Since the present applicant has been arrested on 8.11.2018 in the present crime case and the Crime Case No.261 of 2017 is prior to his arrest, therefore, that crime case must have been disclosed and explained in the bail application or in any subsequent affidavit. Non-disclosure of the entire criminal antecedent in the bail application or in subsequent affidavit is always taken seriously for the simple reason that if some one has not approached the court or judicial forum with clean hands, no relief should be granted to him.
At this stage, one fact pricks the mind of the Court that the present applicant is having three names i.e. Manoj Upadhyaya, Manoj Pathak and Vijay Kumar Tiwari, using 'alias' but all these names appear to be distinct to eachother. No doubt, one has full and absolute liberty to use any name he/she likes but three distinct names of one person, more particularly if he/she is involved in any criminal activity, may create some doubt as to whether this fact has got any ulterior motive or not. If the previous criminal history of one name is traced out by the prosecution, the criminal history of another name would not be intimated or apprised and in that case the entire criminal history of that person using three distinct names would not easily be traced out.
Therefore, it is clear that after getting bail in first criminal case the present applicant has committed more 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. The Apex Court further observed that 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 Vs. Vishanbhai Hirabhai Makwana Makwana (Koli) and another reported in AIR 2021 SC 2011 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) Notably, the bail of the co-accused Sunil Kumar Gupta @ Bachcha in Criminal Misc. Bail Application No.10805 of 2019 has been rejected by this Court vide order dated 4.1.2022 considering the gravity of offence and the statement of eye witnesses and of injured persons.
Besides the bail of another co-accused Rohit Singh has been cancelled by this Court pursuant to the directions of Hon'ble Apex Court considering the gravity of the offence, statements of eye witnesses and of injured persons as well as the fact that such co-accused persons have misused the liberty of bail granted by this Court.
Therefore, without entering into the merits of the issue and going through the material available on record, the statements of eye witnesses and of injured persons recorded under Section 161 Cr.P.C., criminal history of the present applicant, I do not find any good ground to grant bail to the present applicant as no case for bail is made out.
Accordingly, bail application is rejected.
Further, I am not convinced to grant parity to the present applicant with those co-accused persons who have been granted bail by this court inasmuch as the present applicant has not explained his criminal history in the bail application and no reply has been given by him to the contents of the counter affidavit filed by the opposite parties explaining the criminal history of the present applicant.
Before parting with, it is expected that the trial shall be concluded with expedition, say, within a period of one year. 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 within a period of nine months in terms of Section 309 Cr.P.C.
[Rajesh Singh Chauhan, J.] Order Date :-07.05.2022 Ram.