Allahabad High Court
Chhatrapal vs State Of U.P. on 21 October, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:168898 Court No. - 80 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43495 of 2023 Applicant :- Chhatrapal Opposite Party :- State of U.P. Counsel for Applicant :- Arun Kumar Shukla,Ashutosh Tiwari,Sudarshan Singh Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. Heard Sri Sudarshan Singh, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A.-I for the State and perused the material on record.
2. This is the third bail application under Section 439 of Code of Criminal Procedure filed by the applicant Chhatrapal, seeking enlargement on bail during trial in connection with Case Crime No. 133 of 2020, under Sections 302/34, 120B IPC, registered at P.S. Civil Lines, District Rampur.
3. The first bail application of the applicant being Criminal Misc. Bail Application No. 42880 of 2020 was rejected by this Court vide order dated 02.12.2020 on merits. The second bail application of the applicant being Criminal Misc. Bail Application No. 17771 of 2021 was also rejected by this Court vide order dated 19.12.2022 on merits.
4. Learned counsel for the applicant submitted that trial in the present matter is going on in which 08 prosecution witnesses have been examined. It is submitted that P.W.-2/Sunil Yadav, P.W.-3/Ashish Jauhari, P.W.-4/Awadhesh Sharma although have not been declared hostile but have not supported the prosecution case inasmuch as there are contradictions in their statements. It is submitted that P.W.-5/Pushpa Devi has been declared hostile and as such the applicant has been falsely implicated in the present case and deserves to be released on bail.
5. Per contra, learned counsel for the State opposed the prayer for bail and submitted that the first bail application and the second bail application of the applicant have been rejected by this Court by a detailed order. It is submitted that in so far as the statement of P.W.-2 is concerned, argument regarding the same was even earlier raised which was considered by this Court in the second bail application. There is no fresh and new ground made out in favour of the applicant. It is submitted that trial is pending which is going on and 08 witnesses have been examined and as such release of the applicant at this stage may have an adverse effect. It is submitted that the applicant has criminal history of 12 cases including the present case.
6. After having heard learned counsels for the parties and perusing the records, it is evident that the second bail application of the applicant was rejected by this Court vide order dated 19.12.2022. The same reads as under:-
"List revised.
Heard Sri Ashok Kumar Nigam, learned counsel for the applicant and Sri S.B. Maurya, learned counsel for the State and perused the record.
This second bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Chhatrapal seeking enlargement on bail during trial in connection with Case Crime No. 133 of 2020, under Sections 302/34, 120-B IPC, registered at P.S. Civil Lines, District Rampur.
The first bail application of the applicant was rejected by this Court vide order dated 02.12.2020 passed in Crl. Misc. Bail Application No. 42880 of 2020 (Chhatrapal Vs. State of U.P.).
Learned counsel for the applicant argued while placing para 45 of the affidavit in support of bail application that co-accused Pawan has been granted bail by a co-ordinate Bench of this Court vide order dated 23.11.2020 passed in Crl. Misc. Bail Application No. 29262 of 2020 (Pawan Yadav Vs. State of U.P.). Copy of the said order has been placed before the Court which is annexure 14 to the affidavit. It is further argued while placing para 48 of the affidavit that co-accused Babu @ Himanshu has also been granted bail by the same Bench vide order dated 09.12.2020 passed in Crl. Misc. Bail Application No. 33849 of 2020 (Babu @ Himanshu Vs. State of U.P.). Copy of the said order has been placed before the Court which is annexure 15 to the affidavit. It is further argued while placing para 42 of the affidavit that the applicant is having a criminal history of 8 cases in which Case Crime No. 980 of 2012 being the 8th case in the said list of criminal history which is under Section 147, 302, 201 IPC, Police Station Civil Lines, District Rampur is a case in which the applicant was not named in the First Information Report nor charge sheeted but the Magistrate concerned took cognizance and had committed the case for trial after which the statement of PW-1 Tahir and PW-2 Chandan Singh were recorded after which the applicant was summoned under Section 319 Cr.P.C. vide order dated 02.06.2015 and the applicant was granted bail by the trial court vide order dated 13.08.2015. Para 43 of the affidavit has been placed before the Court to buttress the said argument. It is argued that as such the applicant be released on bail.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the first bail application of the applicant was rejected on merits by a detailed order by this Court on 02.12.2020. In so far as the co-accused Pawan Yadav is concerned, the fact that he has been granted bail was considered by this Court while rejecting the first bail application. Further, in so far as co-accused Babu @ Himanshu is concerned although he has been granted bail but the order of granting bail states that he had a criminal history of three cases. It was further argued that from the pointing out of the applicant, there is a recovery of a country made pistol. It is argued that as such the case of the applicant is distinguishable from that of co-accused Babu @ Himanshu. It is argued that the trial in the said case has started in which as per supplementary affidavit dated 14.10.2022, two witnesses being Smt. Shalini Sharma the first informant was examined as PW-1 and Sunil Yadav an eye witness was examined as PW-2 as such the release of the applicant at this stage, may have an adverse effect in the trial. It is argued that as such no fresh and new ground is made out.
After having heard learned counsel for the parties and perusing the records, it is evident that the first bail application of the applicant was rejected on merits by this Court. The said order dated 02.12.2020 is quoted hereinbelow:-
"Heard Sri Navneet Singh holding brief of Sri R.P.S. Chauhan, learned counsel for the applicant, Mrs. Archana Singh, learned A.G.A. and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Chhatrapal seeking enlargement on bail during trial in connection with Case Crime No. 133 of 2020, under Sections 302/34, 120-B IPC, registered at P.S. Civil Lines, District Rampur.
Learned counsel for the applicant argued that though the applicant is named in the First Information Report but he has been named as a person along with Sunil Yadav accompanying the deceased on a different vehicle, and later on, four persons are said to have come on two motorcycles amongst whom someone shot the deceased Anurag Sharma as a result of which he died. He further argued that the applicant has been falsely implicated in the present case. The recovery of a country made pistol of 315 bore and one country made pistol of 12 bore with live cartridges were on the joint pointing out of the applicant and co-accused Pawan Yadav. It is further argued that Sunil is an eye witness to the incident whose statement is annexed as annexure 9 to the affidavit in support of the bail application which was recorded on 01.06.2020, in which, he states that the deceased Anurag Sharma was shot by Rajkishore @ Duriya and Babu @ Himanshu who came on motorcycles from behind. It is further argued that the First Information Report was registered on 21.05.2020, in which, the applicant was a person who was said to be a witness to the incident. It is further argued that co-accused Pawan Yadav has been granted bail by a co-ordinate Bench of this Court vide order dated 23.11.2020 in Crl. Misc. Bail Application No. 29262 of 2020 (Pawan Yadav Vs. State of U.P.). Para 41 of the affidavit has been placed while explaining the eight cases of criminal history of the applicant and it is stated that the applicant has been granted bail in all the eight cases. It is further argued that the applicant is in jail since 29.05.2020. It is further argued that the role of the applicant is at par with that of co-accused Pawan Yadav and parity is claimed. It is further argued while placing para 40 of the affidavit that the deceased Anurag Sharma was having criminal history and was involved in as many as 38 cases which have been mentioned in the said paragraph.
Per contra, learned AGA vehemently opposed the prayer for bail and argued that the applicant though was named a conspirator and the murder was well planned, in which, the applicant with Sunil was accompanying the deceased and other persons came and shot him, as a result of which, he died. It is further argued that Sunil kept silence for about good period of ten days and then his statement under Section 161 Cr.P.C. was recorded wherein he discloses the name of the assailants. It is further argued that the applicant is having eight cases against him as his criminal history.
After having heard the learned counsel for the parties and perused the record, it is apparent from the records that the applicant was a witness present along with Sunil at the place of occurrence and were travelling with the deceased but on different vehicle. The statement of Sunil was recorded on 01.06.2020 and he remained silent for a good period of ten days before disclosing the name of assailants as being an eye witness to the incident. In so far as the argument relating to parity is concerned, co-accused Pawan Yadav who has been granted bail had no previous criminal history as has been stated in the order dated 23.11.2020. The applicant admittedly is having eight criminal cases as his criminal history which are mentioned in para 41 of the affidavit which are as follows:-
i) Case Crime No. 239 of 2015, u/s 147, 148, 149, 323, 307 IPC, P.S. Civil Lines, District Rampur.
ii) Case Crime No. 606 of 2015, u/s Gunda Act, P.S. Civil Lines, District Rampur.
iii) Case Crime No. 127 of 2018, u/s 420, 323, 504 IPC, P.S. Civil Lines, District Rampur.
iv) Case Crime No. 136 of 2018, u/s 420, 406, 506, 332 IPC, P.S. Civil Lines, District Rampur.
v) Case Crime No. 206 of 2018, u/s 420, 406, 504, 506 IPC, P.S. Civil Lines, District Rampur.
vi) Case Crime No. 836 of 2018, u/s 323, 504, 506, 406, 392 IPC, P.S. Civil Lines, District Rampur.
vii) Case Crime No. 824 of 2019, u/s 135 Electricity Act, P.S. Civil Lines, District Rampur.
viii) Case Crime No. 980 of 2019, u/s 147, 302, 201 IPC, P.S. Civil Lines, District Rampur.
Amongst eight criminal cases, the applicant is involved in one case under Section 302 IPC, in which, he is stated to have been granted bail.
Considering the totality of the case in particular, nature of evidence available on record and the fact that the applicant is again involved in a case of murder while being on bail in eight other case including a case of murder, it is a case of misuse of bail, I am not inclined to release the applicant on bail.
The bail application is, accordingly, rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing."
The case of the co-accused Babu @ Himanshu stands distinguishable on looking to the criminal history itself, the applicant is involved in another case of murder. The said case is still pending. No fresh and new ground is made out. I do not find it a fit case for bail.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail.
The present bail application is, accordingly, rejected."
7. The trial in the matter is going on. Merely P.W.-5 being declared hostile cannot be considered to be a substantial ground for holding the applicant to have been falsely implicated in the matter. The statements of 08 witnesses have been recorded by the trial court and it is for the trial court to appreciate the same at the appropriate stage. The applicant is having criminal history of 12 cases including the present case. No fresh and new ground exists to entertain this bail application.
9. The present third bail application is, accordingly, rejected.
(Samit Gopal,J.) Order Date :- 21.10.2024 Naresh