Allahabad High Court
Dilip Mishra vs State Of U.P. on 1 August, 2022
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On 14.07.2022 Delivered on 01.08.2022 Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 56202 of 2021 Applicant :- Dilip Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Tarun Jha,Satya Dheer Singh Jadaun,Shashank Shekhar Mishra,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Saral Srivastava,J.
1. Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri S.D. Singh Jadaun and Sri Shashank Shekhar Mishra, learned counsel for the applicant and Sri Vikas Sahai and Sri Manoj Kumar Dwivedi, learned AGA for the State.
2. Pleadings have been exchanged between the parties.
3. The present bail application has been filed on behalf of applicant in Case Crime No. 28 of 2017, under Sections 302 of IPC and Section 120-B of IPC, Police Station Kydganj, District Prayagraj with the prayer to enlarge the applicant on bail.
4. On 12.01.2017 at about 7.00 O'clock in the evening one Dr. A.K. Bansal was murdered by unknown assailants. A first information report was lodged on the same day i.e. 12.01.2017 against unknown persons bearing Case Crime No.28 of 2017, under Section 302 of I.P.C. & Section 7 of the Criminal Law Amendment Act at P.S. Kydganj, District Prayagaj.
5. Thereafter, the police commenced investigation and recorded the statement under Section 161 of Cr.P.C of first informant-Pradeep Kumar Bansal, brother of deceased. The investigating officer made spot inspection and collected two empty cartridges, blood stained stone and goggles etc. from the spot. The investigating officer also recorded the statement of witnesses of inquest report under Section 161 Cr.P.C. The investigating officer also collected a CCTV footage and DVR and also collected call detail report of the family members of the deceased.
6. It appears that the investigating officer was informed by the informant that he has identified the person whose images appear on the CCTV footage of the incident in question. The names of the person identified were Yasir and Shoiab. The investigating officer on 26.3.2021 recorded the statement of Asif, brother of the accused-Yasir, under Section 161 Cr.P.C., who identified out of the two persons one his elder brother Yasir and another Shoiab, friend of Yasir. He further stated that his brother Yasir was in touch with Shoiab and Maksud @ Zaid and they had committed number of crimes. He also disclosed that Maksud @ Zaid, committed the murder of his brother Yasir. In this respect, a first information report was lodged at Police Station Antu, Pratapgarh, under Section 302 of IPC, and in this case Maksud @ Zaid has been arrested and languishing in jail.
7. Later on, the police arrested Shoiab and immediately after his arrest, police in Nakal Fard recorded his statement wherein he has stated that the deceased had given Rs.55,000,00/- to one Alok Sinha for admission of his son but Alok Sinha could not manage the admission of son of deceased and had swindled the money of deceased. The deceased in this regard lodged an FIR against Alok Sinha, and in the said criminal case, Alok Sinha was arrested and was put in the jail in one number circle of B-class barrack, where Alok Sinha came in contact with the applicant-accused Dilip Mishra, Ashraf @ Akhatar Katra, Julfikar @ Tota, Gulam Rasool and Pawan Singh. He further stated that Alok Sinha conspired to kill the deceased with the applicant-accused and Ashraf @ Akhatar Katra. Thereafter, Maksud @ Zaid, Yasir and Shoiab were contacted by the applicant-accused and Ashraf @ Akhatar Katra through one Abrar Mulla. It was agreed that Rs.70 lakh was to be paid by Alok Sinha for the murder of the deceased. He further made disclosure in the statement as to how the murder of the deceased was committed.
8. The investigating officer recorded the statement of Shoiab under Section 161 of Cr.P.C. in which he has reiterated the same statement which was recorded by the police on the arrest of the Shoiab in Nakal Fard. In the statement recorded under Section 161 Cr.P.C., Shoiab reiterated that the applicant-accused was in one number circle of B-Class barrack before Alok Sinha was put in the said barrack.
9. Sri V.P. Srivastava, learned Senior Counsel has submitted that except the statement of Shoiab, in which the name of the applicant-accused has surfaced for the first time after about four years from the date of commission of offence, there was no incriminating material on record which points to the involvement of the applicant-accused in the said offence. He further submits that statement of Shoiab before the police under Section 161 of Cr.P.C. cannot be read in evidence on account of bar put by Section 25 & 26 of the Indian Evidence Act, 1872, therefore, the statement of Shoiab recorded by the police cannot be read in evidence against the applicant-accused. He submits that as there is no incriminating material against the applicant-accused except the statement of Shoiab recorded by the police under Section 161 of Cr.P.C, the implication of the applicant-accused in the said criminal case is false.
10. Elaborating the aforesaid submission, learned Senior Counsel has placed reliance upon Section 162 of Cr.P.C. and submits that the statement recorded by police during investigation can be used only for the purposes of contradiction in the statement of the witness and for no other purposes. He submits that the stage of recording of statement of accused comes when the trial is proceeded and the Court proceeds to examine the accused under Section 313 Cr.P.C. during trial. He further placed Section 315 of Cr.P.C. which provides for the defence of the accused as witness in his defence. On the strength of the aforesaid submission, it is contended that in the absence of any incriminating material or any legal evidence against applicant-accused, the accused cannot remain in incarceration.
11. He further submits that in the instant case, it is manifest from the record that the arrest of the applicant-accused is malicious, therefore, the criminal history of the accused does not come in the way of the applicant from being released on bail. He submits that illegal detention of the accused infringes fundamental rights of the accused enshrined under Article 21 of the Constitution of India, therefore, applicant deserves to be enlarged on bail by this Court.
12. Sri V.P. Srivastava, learned Senior Counsel has also placed paragraph 3(i) to (xxvii) of the supplementary affidavit explaining the criminal history of 26 cases in which the accused has been acquitted and paragraph 4(i) to (xviii) of the supplementary affidavit explaining the pending criminal cases against the accused in which applicant has been enlarged on bail.
13. He further submits that it is a case of circumstantial evidence and prosecution has to establish every chain of events to establish the guilt of the applicant-accused. It has been further submitted that applicant is languishing in jail since 27.07.2021 and that in case the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
14. In support of his submission, learned Senior Counsel has placed reliance upon the judgment of the Apex Court in Nikesh Tarachand Shah Vs. Union of India & Anr. Reported in 2018 (11) SCC 1, Dataram Singh Vs. State of U.P. & Anr., 2018 (3) SCC 22 and order of this Court passed in Criminal Misc. Bail Application No.28420 of 2009 (Rama Kant Yadav Vs. The State of U.P.). He has also relied upon the judgment of Apex Court in Maulana Mohammed Amir Rashadi Vs. State of U.P. & Anr., 2012 (2) SCC 382, Neeru Yadav Vs. State of U.P., (2015) 3 SCC (Cri) 527 and the judgment of PRIVY Council in Pakala Narayana Swami Vs. The King Emperor, 40 Cr. L.J. 1939.
15. It is further urged that the accused is also entitled to parity with the co-accused Alok Sinha, Abrar Mulla @ Mohammad Abrar Khan, Ashraf @ Akhatar Katra who have already been enlarged on bail in Criminal Misc. Bail Application Nos. 43296 of 2021, 53760 of 2021 and 15274 of 2022 vide order dated 10.12.2021, 20.12.2021 and 13.07.2022 respectively. Hence, the applicant-accused is also entitled to be released on bail on the ground of parity as his case stands on a better footings than the above co-accused persons.
16. Per-contra, learned AGA has submitted that there are sufficient material and evidence on record which establishes the prima facie involvement of the applicant-accused in the crime. He submits that during the investigation the duty of the investigating officer is to see as to whether there are incriminating material and evidence on record which leads to indicate the prima facie involvement of the accused in the crime. He further submits that the statement of one Pran Nath was recorded under Section 161 Cr.P.C. wherein he has stated that he along with his late brother Madhav Prasad stood surety for Alok Sinha after his release from bail in Case Crime No. 644 of 2015 on the instructions of the applicant-accused-Dilip Mishra. It is submitted that the statement of Pran Nath acknowledges the fact that the applicant-accused has close acquaintance with Alok Sinha.
17. He further submits that one Anirudh Yadav, an employee of Jeevan Jyoti Hospital, has made the statement that the deceased had purchased about three bigha land in the vicinity of land of applicant-accused, who was pressurizing the deceased to sell the said land to him but the deceased did not agree to sell the said land to the applicant-accused which led the applicant-accused to encroach upon the land of the deceased situated in the vicinity of the applicant-accused. He further stated that the persons known to the applicant-accused stood surety for Alok Sinha. Accordingly, it is submitted that the accused-applicant has motive for eliminating the deceased, and the aforesaid fact clearly indicates the prima facie involvement of the accused in the crime.
18. He further submits that the criminal history of applicant-accused demonstrates that he is habituated and hard core criminal which disentitles him from being released on bail. In this respect, he has placed reliance upon the judgment of the Apex Court in the case of Harjit Singh Vs. Inderpreet Singh alias Inder and another, AIR 2021 SC 4017 and the recent judgment of this Court passed in Criminal Misc. Bail Application No.46494 of 2021 (Mokhtar Ansari Vs. State of U.P.
19. Sri Vikas Sahai, learned AGA has also placed Section 30 of the Indian Evidence Act, 1872 to contend that though the confessional statement or statement recorded under Section 161 Cr.P.C. is a weak evidence but it can be read as an evidence under Section 30 of the Indian Evidence Act, 1872 when more persons than one are being tried jointly for the same offence.
20. I have heard learned counsel for the parties and perused the record.
21. Before proceeding to deal with the respective contention of the learned counsel for the parties, it would be apposite to refer to few judgments wherein the Apex Court has elucidated the principles to be born in mind while granting bail. In the case of Prahlad Singh Bhati Vs. NCT of Delhi and Anr., 2001 (4) SCC 280, the Apex Court stated the principles which are to be considered while granting bail. Relevant paragraph of the said judgment is reproduced herein below:
8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
22. In the case of Prasanta Kumar Sarkar Vs. Ashish Chatterjee and Anr., 2010 (14) SCC 496 the Apex Court laid down the factors which the Court should bear in mind while considering an application for bail, which are reproduced herein below:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
23. Now in the light of aforesaid principles which the Court has to keep in mind in considering a bail application, the Court proceeds to consider the contention of the respective parties.
24. Learned counsel for the applicant has laid emphasis as to the purpose of granting bail, in this regard, he has placed reliance upon a judgment of the Apex Court in the case of Nikesh Tarachand Shah (supra), wherein the Apex Court had considered the history of bail as defined in Clause 39 of the Magnacarta. Relevant paragraph nos. 15, 16 and 18 of the judgment are reproduced herein below:
15. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows:
"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." It is well known that Magna Carta, which was wrung out of King John by the barons on the 15th of June, 1215, was annulled by Pope Innocent III in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognized by kingly authority. In fact, by the statutes of Westminster of 1275, King Edward I repeated the injunction contained in clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a matter of divine right, a struggle ensued between Parliament and King Charles I. This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility to the Duke of Buckingham, the House of Commons denied King Charles I the means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as "the Five Knights". Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King's Bench, headed by the Chief Justice, made an order sending the knights back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, "let right be done as is desired by the petition". Among other things, the Petition had prayed that no free man should be imprisoned or detained, except by authority of law.
16. In Bushell's case, decided in 1670, Chief Justice Sir John Vaughan was able to state that, "the writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it."
Despite this statement of the law, one Jenkes was arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles II be petitioned to call a new Parliament. Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, "immediately commanded that the laws should have their due course." (See Jenke's case, How. St. Tr. at pp. 1207, 1208, (1676) 6 How St Tr 1189). It is cases like these that led to the next great milestone of English history, namely the Habeas Corpus Act, 1679. This Act recited that many of the King's subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King's Bench Judges subject to penalties for non-compliance.
18. What is important to learn from this history is that clause 39 of Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". We may only add that the Eighth Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar v. State through Government of NCT of Delhi (2011) 13 SCC 706, at paragraphs 60 and 61.
25. Learned counsel for the applicant has also placed reliance upon the judgment of Apex Court in the case of Dataram Singh (supra) in respect to the principle that though the grant or refusal of bail entirely depends upon the discretion of the judge it must be exercised in a judicious manner and human approach should be adopted by the Judge. Relevant paragraph nos. 3 and 4 of the judgment are reproduced herein below:
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. 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 poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons, (2017) 10 SCC 658.
26. Now coming to the first contention of learned counsel for the applicant that the confessional statement or statement made before the Investigating Officer under Section 161 Cr.P.C. cannot be considered as evidence in view of bar put by Section 24 and 25 of the Indian Evidence Act, 1872.
27. There is no dispute or quarrel on the said principle of law as the said principle has been settled by catena of decisions by the Supreme Court but in the instant case, the Court has to keep in mind that the accused was involved in the crime with the Shoiab and other co-accused and the trial of accused applicant and co-accused shall be conducted jointly, therefore, Section 30 of the Evidence Act may also come into play, and if the ingredients of Section 30 of Evidence Act are present, the statement of the co-accused can be pressed into service against the other co-accused if the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from said evidence.
28. In such view of the fact, the argument of the learned counsel for the applicant that the statement of co-accused Shoiab recorded by the police is no evidence in the eye of law can't be considered against the Shoiab and co-accused at the stage of bail in view of the Section 30 of the Indian Evidence Act. It is a case where more persons than one are being tried jointly for the same offence, and if the ingredients of Section 30 of the Evidence Act are present, the Court may look into the statement of Shoiab against the applicant also. In such view of the fact, the contention advanced by the learned counsel for the applicant relying upon Sections 24 & 25 of the Evidence Act can be considered at the trial and does not arise for consideration while dealing with bail application as the bail application is to be considered with the parameters of Section 439 of Cr.P.C. and on the factors enumerated by the Apex Court in the judgements referred above.
29. Now the Court proceeds to consider as to whether the prima facie involvement of the accused is manifest from the record or not.
30. In the instant case, a look at the statement of Pran Nath discloses that he and his brother became surety of Alok Sinha on the instructions of the accused which prima facie establishes the link and acquaintance between Alok Sinha and the applicant-accused. The record further reveals that Alok Sinha, Dilip Mishra-applicant, Ashraf @ Akhatar Katra, were lodged in one number circle of B-class barrack where these three persons had met and hatched the conspiracy to kill Dr. A.K. Bansal, the deceased. It has come on record in the statement of Shoiab that applicant-accused and Ashraf @ Akhatar Katra had contacted him, Yasir and Maksud @ Zaid, through Abrar Mulla and gave contract (supari) for killing the deceased.
31. The motive of the applicant-accused for eliminating the deceased has come on record in the statement of Anirudh Yadav, employee of Jeevan Jyoti Hospital, wherein he has stated that about three bigha land was purchased by Dr. A.K.Bansal (deceased) in the vicinity of the land of the applicant-accused which the applicant-accused wanted to purchase from Dr. A.K.Bansal but he refused to sell the same to him, the accused encroached upon the land of deceased. The aforesaid fact prima facie establishes the motive of the applicant and involvement of the applicant-accused in the commission of offence as one of the main conspirator.
32. Now coming to the question as to whether the criminal history of the applicant-accused comes in the way for grant of the bail. Before considering the said question it would be fruitful to glance through judgments of the Supreme Court on this aspect. In the case of Harjit Singh (supra), an order granting bail has been set aside by the Apex Court on the ground that the High Court failed to consider the antecedents of the respondent no.1 and the threat perception to the appellant and his family members, accordingly, the Apex Court found that the order granting bail was not within the bounds of law which permits the Court to release an accused on bail.
33. It would be apt to refer to the judgment of Apex Court in the case of Gudikanti Narasimhulu Vs. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240. Relevant paragraph Nos.7, 8 and 9 of the judgment are reproduced herein below:
"7. It is thus obvious that the nature of the charge is the vital factor and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.
8. Another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being.
9. Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record-- particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance."
34. In the case of Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court has elaborated that the the personal liberty cannot be stretched to an extent which may disturb the peace of the society. The personal liberty has to be enjoyed within the bounds of the law so that the tranquillity and safety of the society at large may not jeopardise. Relevant paragraph no.17, 18 and 19 of the judgment are reproduced herein below:
"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".
18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing J. Oerter stated:
"Personal liberty is the right to act without interference within the limits of the law."
19. Thus analysed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti-collective act."
35. At this point, it would be also apposite to refer to judgment of the Apex Court in the case of Neeru Yadav (supra) which has been relied upon by counsel for the applicant as well as learned counsel for the respondent. Relevant paragraph nos. 12, 13 and 16 of the judgment are reproduced herein below:
"12. We have referred to certain principles to be kept in mind while granting bail, as has been laid down by this Court from time to time. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court.
13. In the case at hand, two aspects have been highlighted before us. One, the criminal antecedents of the 2nd Respondent and second, the non-applicability of the principles of parity on the foundation that the accusations against the accused Ashok and second Respondent are different.
16. The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the second Respondent? We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law."
36. In the case of Mahipal Vs. Rajesh Kumar Alias Polia and Anr., (2020) 2 SCC 118, the Apex Court in paragraph 14 has observed as under:-
14.The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.
37. This Court also in the case of Mokhtar Ansari (supra) after considering long line of decisions has refused to grant bail to the applicant keeping in view that the applicant has the criminal history of 54 cases to his credit.
38. Now coming to the facts of the present case, as per counter affidavit, the applicant has criminal history of 48 cases including the present case. The cases pertaining to criminal history are reproduced herein below:
प्रारूप क्र.स.
जनपद थाना मु०अ०सं०/धारा अभियुक्तों के नाम व पता अभियोजन की स्थिति 1 प्रया० नैनी मु०अ०सं० 91/91धारा 498ए/304बी IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 10.02.95 2 प्रया० नैनी मु०अ०सं० 611/91 धारा 147/148/149/307/ 504/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 3 प्रया० नैनी मु०अ०सं० 498/92 धारा 307 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 4 प्रया० नैनी मु०अ०सं० 169/93 धारा 332/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 06.02.95 5 प्रया० नैनी मु०अ०सं० 216/93 धारा 323/504/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 06.02.95 6 प्रया० नैनी मु०अ०सं० 456/93 धारा 323/504/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 28.04.2005 7 प्रया० नैनी मु०अ०सं० 557/95 धारा 304ए IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 15.04.1997 8 प्रया० नैनी मु०अ०सं० 429/96 धारा 323/504/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 27.08.2004 9 प्रया० औ०क्षेत्र मु०अ०सं० 185/98 धारा 386/504 IPC 3(1)10 एससीएसटी एक्ट व 22/23 मनि लान्ड्रिंग अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 31.03.2011 10 प्रया० सिविल लाइन्स मु०अ०सं० 328/2000 धारा 147/148/323 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 28.04.2007 11 प्रया० औ०क्षेत्र मु०अ०सं० 110/02 धारा ¾ गुण्डा अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज कार्यवाही समाप्त 12 प्रया० सिविल लाइन्स मु०अ०सं० 89/03 धारा 147/148/149/302 IPC व 7 CLA Act व 2/3 गैंगस्टर अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 07.03.2018 13 प्रया० औ०क्षेत्र मु०अ०सं० 270/03 धारा 147/148ख/149ख/307 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 19.12.2005 14 प्रया० औ०क्षेत्र मु०अ०सं० 119/07 धारा 392 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज FR स्वीकृत 15 प्रया० औ०क्षेत्र मु०अ०सं० 170/07 धारा 504 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 05.12.2012 16 प्रया० औ०क्षेत्र मु०अ०सं० 174/07 धारा 392/386/323/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 06.05.2013 17 प्रया० औ०क्षेत्र मु०अ०सं० 219/07 धारा 2/3 गैंगस्टर अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज सीआरपीसी 313 में 18 प्रया० औ०क्षेत्र मु०अ०सं० 257/07 धारा 323/504/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 08.05.2012 19 प्रया० औ०क्षेत्र मु०अ०सं० 261/07 धारा 364/504 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज FR स्वीकृत 06.03.2010 20 प्रया० नैनी मु०अ०सं० 288/07 धारा 384/504/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 16.03.2009 21 प्रया० औ०क्षेत्र मु०अ०सं० 11/08 धारा 147/148/149/504/ 506/307 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 22 प्रया० औ०क्षेत्र मु०अ०सं० 240/08 धारा ¾ गुण्डा अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज कार्यवाही समाप्त 23 प्रया० नैनी मु०अ०सं० 245/08 धारा 147/148/323/504/ 506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 16.03.2009 24 प्रया० औ०क्षेत्र मु०अ०सं० 165/09 धारा 147/148/149/302 IPC 7 क्रि०ला०एक्ट दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 28.09.2013 25 प्रया० औ०क्षेत्र मु०अ०सं० 238/09 धारा 2/3 गैंगस्टर अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज बहस डिफेंस 26 प्रया० नैनी मु०अ०सं० 493/09 धारा 332/333/504/506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 18.05.2013 27 महाराष्ट्र मु०अ०सं० 61/10 धारा 353 IPC व 4/25 A. ACT व 135 BP ACT दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज 28 प्रया० औ०क्षेत्र मु०अ०सं० 71/10 धारा 302 IPC व 3(2)5 एससी एसटी एक्ट दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज दोषमुक्त 06.04.2013 29 प्रया० मुट्ठी गंज मु०अ०सं० 103/10 धारा 419/420 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी 30 प्रया० औ०क्षेत्र मु०अ०सं० 153/10 धारा 2/3 गैंगस्टर अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज सीआरपीसी 313 में 31 प्रया० नवाबगंज मु०अ०सं० 208/10 धारा 419/420/467/468 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी में पत्रावली चल रहा है 32 प्रया० नगर कोतवाली मु०अ०सं० 237/10 धारा 307/302/120बी IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज साक्ष्य में 33 प्रया० औ०क्षेत्र मु०अ०सं० 95/15 धारा 3/25 व 30 A. ACT दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज 34 प्रया० थाना खुल्दाबाद जनपद प्रयागराज मु०अ०सं० 120/15 धारा 506 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज 35 प्रया० औ०क्षेत्र मु०अ०सं० 183/15 धारा 147/332/504/353 IPC व 136(2) लोक प्रतिनिधित्व अधिनियम दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज चार्ज में 36 प्रया० औ०क्षेत्र मु०अ०सं० 184/15 धारा 147/148/332/353/ 392/504/506 IPC व 7 CLA ACT व 136(2) लोक प्रतिनिधित्व अधिनियम दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज चार्ज में 37 प्रया० औ०क्षेत्र मु०अ०सं० 209/15 धारा 110G CRPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज कार्यवाही समाप्त 38 प्रया० औ०क्षेत्र मु०अ०सं० 416/16 धारा ¾ गुण्डा अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज कार्यवाही समाप्त 39 प्रया० थाना कीडगंज 28/17 धारा 302/120B IPC व 7 CLA ACT दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी 40 प्रया० औ०क्षेत्र 35/17धारा 110 G CRPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज कार्यवाही समाप्त 41 प्रया० औ०क्षेत्र 163/17 धारा 448/188 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी में 42 प्रया० औ०क्षेत्र 261/17 धारा 2/3 गैंगस्टर अधि० दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी में 43 प्रया० औ०क्षेत्र 144/18 धारा 419/420/467/468/ 471 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी में 44 प्रया० औ०क्षेत्र 02/2020 धारा 110G CRPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज 45 प्रया० औ०क्षेत्र 121/2020 धारा 307/420/467/468/ 471 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी में 46 प्रया० औ०क्षेत्र 124/2020 धारा 420/467/468/471 IPC दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी में 47 प्रया० औ०क्षेत्र 125/2020 धारा 27/30 आर्म्स एक्ट दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज हाजिरी में 48 प्रया० औ०क्षेत्र 218/2020 धारा 2/3 गैंगस्टर एक्ट दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज चार्ज में 49 प्रया० थाना कीडगंज 15/2022 धारा 2/3(1) गैंगस्टर एक्ट दिलीप मिश्रा पुत्र राम गोपाल मिश्रा निवासी लवायन कला थाना औद्योगिक क्षेत्र जनपद प्रयागराज
39. From the above chart, it is clear that the applicant has been acquitted in 21 cases while the trial in remaining cases are pending and the accused has been enlarged on bail. The aforesaid conduct and criminal history of the applicant reflects that he is a hardened and habituated criminal and has misused the bail inasmuch whenever he was enlarged on bail, he came out from jail and was involved in criminal offences for which number of cases as detailed above, has been registered against him.
40. While considering the bail, the Court besides other factors has to keep in mind the criminal antecedents of the accused. For enlarging the accused on bail the issue that he has been acquitted in many cases and enlarged on bail in other pending cases does not have much relevance for the reason that the question of enlarging the applicant on bail has to be considered within the parameters laid down by the various pronouncement of the Apex Court. The Court in granting the bail has also to keep in mind factors such as likelihood of the offence being repeated, reasonable apprehension of a witness being influenced, likelihood of danger of justice being thwarted by grant of bail.
41. In the instant case, the applicant has history of 48 criminal cases to his credit out of which in some cases he has been acquitted and in some cases he has been enlarged on bail. The record reflects that after coming out of jail, he has committed offences, hence, it cannot be ruled out that if the applicant is released on bail he shall not commit a crime after release on bail.
42. At this juncture, it would be apposite to consider the statement of Anirudh Yadav, the employee of Jeevan Jyoti Hospital who in his statement has categorically stated that the accused is dreaded criminal and he is scared of him. Now this statement of Anirudh Yadav leads to indicate that if the applicant is released on bail, he may influence the witnesses. The offence alleged against the accused is also grave in nature and if charge is proved the accused will be liable for severe punishment.
43. Though, it is true that the Court has always emphasised that the personal liberty of the person is prime consideration but that personal liberty has to be exercised within the bounds of the law and in a manner so that the peace and tranquillity is not disturbed. The courts have emphasised that valuable right of liberty of an individual and the interest of society in general has to be balanced while considering bail application.
44. Now coming to the judgments relied upon by learned counsel for the applicant at paragraph 19 in the case of Ramakant Yadav (supra), wherein this Court has held that the criminal antecedent of the applicant would not be a ground to refuse the bail to the applicant-accused when he is otherwise entitled to be enlarged on bail which judgment has been affirmed by the Apex Court in Maulana Mohammed Amir Rashadi (supra), but the facts of the case in Ramakant Yadav (supra) are different from the facts of the present case inasmuch in the case of Ramakant Yadav (supra) the complainant and one more witness was examined in the Court and in such circumstances this Court found that chances of tempering of witness is slender, therefore, considering the nature of accusation against the applicant in that case this Court granted bail to the applicant.
45. In the instant case, the trial has not yet commenced, and that the statement of the witnesses has not yet been recorded by the Court, therefore, keeping in view the criminal antecedent of the accused, there is every likelihood that he can influence or tamper the evidence. Therefore, the judgment relied upon by the learned counsel for the applicant is not applicable in the facts of the present case.
46. Now so far as the issue of parity is concerned, it is pertinent to note that this Court while granting the bail to Ashraf @ Akhtar Katra, Abrar Mulla @ Mohammad Abrar Khan and Alok Sinha has not considered the law of criminal history and further the orders passed on bail application against the said co-accused person do not disclose as to what was the criminal history of those accused persons, therefore, this fact itself distinguishes the fact of the applicant-accused against all the co-accused who have been granted bail by this Court.
47. In such view of the fact, this Court applying the principles elucidated by the Apex Court is of the view that applicant is not entitled to be enlarged on bail by this Court. Accordingly, the bail application of applicant-Dilip Mishra is hereby rejected. Any observation made hereinabove shall not prejudice the trial of the accused-applicant.
Order Date :-01.08.2022 Mohit Kushwaha (Saral Srivastava, J.)