Allahabad High Court
Laxman Prasad (Second Bail) vs State Of U.P. on 7 January, 2014
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Judgment reserved on 03.01.2014 Judgment Delivered on 07.01.2014 Court No.17 BAIL (SECOND) NO.4707 OF 2013 Laxman Prasad son of Sri Ram Dhok resident of Village Madhaupur, Police Station Kotwali Dehat, District Gonda Versus State of U.P. Counsel for Petitioner:- Jyotindra Misra, Sunil Dixit Counsel for Respondent :- Sharad Dixit-AGA, K.N. Mishra Hon'ble Vishnu Chandra Gupta,J.
1. Heard learned Senior Counsel for the applicant Sri Jyotindra Misra assisted by Sri Sunil Dixit, Advocate, learned counsel for the complainant Sri K.N. Mishra and learned A.G.A. for the State Sri Sharad Dixit .
2. By means of the present second bail application, the applicant has prayed for bail in Case Crime No.28 of 2013, under Sections 302, 303, 506 IPC, Police Station Kotwali Dehat, District Gonda.
3. The first bail application of the applicant had been rejected for want of prosecution by this Court vide order dated 19.07.2013.
4. As per the case narrated in the first information report, the present applicant-Laxman Prasad, Ashok Kumar and Onkar Nath exhorted to kill the deceased-Prag Dutt and in consequence thereof, the co-accused Ramesh shot fire upon the deceased and, therefore, the deceased died. This incident was occurred on 12.02.2013 at about 05.30 p.m. in Village Madhaupur. The motive of incident was that a litigation was going on in between the parties and the accused persons were threatening to withdraw the case and leave the land in question in favour of the accused persons.
5. It has been contended by learned counsel for the applicant that in this case co-accused Ashok Kumar, who has been assigned the similar role with the role of the present applicant, has been granted bail by this Court vide order dated 15.05.2013 in Bail No.2752 of 2013.
6. It was further contended by learned counsel for the applicant that only on account of criminal history, the bail to the applicant cannot be denied and it is the duty of the Court to look into the merit of the case and the role assigned to the accused and then decide whether the bail should be granted or not. In this regard learned counsel for the applicant invited the attention of this Court to paragraph 10 of a judgment of the Apex Court rendered in Maulana Mohammed Amir Rashadi vs. State of Uttar Pradesh and another, (2012) 2 SCC 382, which reads as under:
"10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the court, etc."
7. It was further submitted by learned counsel for the applicant that the present applicant-Laxman Prasad is on bail after conviction in Case Crime No.273 of 1982 and, therefore, there is no impediment in granting bail if the applicant is eligible to bail otherwise. It was further contended that the provisions of Section 437(1) (ii) of the Code of Criminal Procedure (in short 'CrPC) will not apply while exercising jurisdiction to consider the bail by court of sessions or by High Court under Section 439 CrPC and it is not an impediment in granting the bail by court of sessions or by High Court.
8. Learned counsel for the complainant as well as learned A.G.A. for the State heavily relied upon the previous conviction of the applicant and stated that in view of the mandate contained in Section 437 (1)(ii), CrPC, the applicant is not entitled for bail. It was further contended that the provisions of Section 437, CrPC would apply while granting bail under Section 439, CrPC, thus, the contention of learned counsel for the applicant that this provisions under Section 437 (1) (ii) will not come into play especially when the accused applicant is on bail during the pendency of appeal before this Court, is not sustainable.
9. Prime consideration before this Court is whether the provisions contained in Section 437 (1)(ii), CrPC would apply while deciding the bail under Section 439, CrPC by court of sessions or by High Court or not?
10. The aforesaid question is not res integra. While considering the aforesaid question, the Apex Court in paragraphs 13 and 14 in Gurcharan Singh Vs. State (Delhi Admn.), (1978) 1 SCC 118 has observed as under:
"13. Mr Mulla drew our particular attention to some change in the language of Section 437(1) CrPC (new Code) compared with Section 497(1) of the old Code. Mr Mulla points out that while Section 497(1) CrPC of the old Code, in terms, refers to an accused being "brought before a Court", Section 437(1) CrPC uses the expression "brought before a Court other than the High Court or a Court of Session". From this, Mr Mulla submits that limitations with regard to the granting of bail laid down under Section 497(1) to the effect that the accused "shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life" are not in the way of the High Court or the Court of Session in dealing with bail under Section 439 of the new Code. It is, however, difficult to appreciate how the change in the language under Section 437(1) affects the true legal position. Under the new as well as the old Code an accused after being arrested is produced before the Court of a Magistrate. There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court. Section 437(1) CrPC, therefore, takes care of the situation arising out of an accused being arrested by the police and produced before a Magistrate. What has been the rule of production of accused person after arrest by the police under the old Code has been made explicitly clear in Section 437(1) of the new Code by excluding the High Court or the Court of Session.
14. From the above change of language it is difficult to reach a conclusion that the Sessions Judge or the High Court need not even bear in mind the guidelines which the Magistrate has necessarily to follow in considering bail of an accused. It is not possible to hold that the Sessions Judge or the High Court, certainly enjoying wide powers, will be oblivious of the considerations of the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life. Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate of the law of bail under Section 437 CrPC for the Magistrate will be ignored by the High Court or by the Sessions Judge."
11. So far as the question of previous conviction is concerned, while dealing with the said issue, the Apex Court in Ram Pratap Yadav Vs. Mitra Sen Yadav, (2003) 1 SCC 15, ruled in paragraph 7 as under:
"7. The learned counsel for the appellant has submitted by inviting attention of the Court to the provisions of Section 437 CrPC that a person accused of or suspected of the commission of any non-bailable offence shall not be released on bail if he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for 7 years or more, unless special reasons for enlarging the accused on bail are available and recorded in writing. The learned counsel for Respondent 1 submitted that the powers of the Sessions Court and the High Court to enlarge the accused on bail under Section 439 CrPC are very wide and are not fettered by the provisions of Section 437 CrPC. Be that at it may, it cannot be denied that previous conviction of an accused for a heinous offence punishable with imprisonment for life, his involvement in other crimes and the quantum of punishment for the offences in which the applicant is seeking bail are all relevant factors to which the court should consciously advert to while taking a decision in the matter of enlargement on bail. A prayer for bail having been rejected by the Sessions Court although the High Court while exercising its jurisdiction under Section 439 CrPC is not acting as a court of appeal or a court of revision over the order of the Sessions Court, nevertheless, the High Court should keep in mind, while hearing the application for bail, the factum of the prayer having been rejected by the Sessions Court and the reasons therefor expressly set out in the order of the Sessions Court. The order of the High Court, howsoever brief it may be, should make it appear that the High Court while forming opinion on prayer for bail was conscious of the reasons for rejection of prayer for bail as assigned by the Sessions Court."
12. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan, (2004) 7 SCC 528, the Apex Court again consider the aforesaid aspect in paragraph 14, which reads as under:
"14. This Court also in specific terms held that the condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."
13. In view of the aforesaid decisions of Highest Court of this Country and discussions made thereinabove, it is crystal clear that the provisions contained in Section 437, CrPC will fully apply while considering the bail application either by court of sessions or by High Court. The fact that the applicant is a previous convict and has been released on bail in appeal is not in dispute but nothing has been brought on record on behalf of the applicant that his conviction was also suspended. Ordinarily, the punishment awarded after conviction is suspended while granting the bail to the accused persons during appeal, therefore, it cannot be said that the applicant is not a previous convict.
14. So far as, question of parity with co-accused Ashok Kumar is concerned, this Court is of the opinion that parity cannot be extended to the present applicant because the weapon used in this incident for assault had been recovered on the pointing out of the present applicant. This fact is also worth notice that co-accused Ashok Kumar is not a previous convict hence on this count, the applicant is not entitled for bail on the ground of parity.
15. So far as criminal history of the applicant is concerned, it is not a ground to be considered within the scope of Section 437, CrPC but while dealing with the bail applications, certain considerations should be kept in mind by the Court as held in several judgments by the Apex Court. These considerations are in built in Section 437, Cr.P.C. One of the considerations while considering the bail is that there is any likelihood of tampering the evidence or there is a reasonable apprehension of the witnesses being influenced by the accused. In this regard, the character, behaviour, means, position and standing of the accused is also required to be seen as held in State of U.P. Vs. Amarmani Tripathi,(2005) 8 SCC 21, Prahlad Singh Bhati Vs. N.C.T., Delhi & Another, (2001) 4 SCC 280, Ram Govind Upadhyay Vs. Sudarshan Singh and Others, (2002) 3 SCC 598 and in Prasanta Kumar Sarkar Vs. Ashis Chatterjee, (2010) 14 SCC 496.
16. In this case, the applicant has a criminal history of eight cases as per the contents of paragraph 14 of the counter affidavit. Out of eight cases, in three cases, the applicant is acquitted in which one is of Section 302 IPC and in two cases, the applicant is on bail. In Case Crime No.273 of 1982, under Section 302 IPC the applicant was convicted and against which the applicant filed an appeal and he is on bail. The said appeal is pending before this Court.
17. From a perusal of investigation of the present case, it reveals from the statement of Ganga Prasad that the witnesses are afraid with the present applicant because he has been convicted twice (out of which in one case he was acquitted in appeal) and this incident was also occurred to put pressure to withdraw the case relating to land in question and relinquish the claim by the complainant over the property in question. In view of this, it cannot be said that apprehension in the mind of the prosecution witnesses that in case, the accused applicant is released on bail, he will influence and tamper the prosecution witnesses not to give evidence against him, is not reasonable.
18. In view of the aforesaid facts and circumstances of the case, I do not find that it is a fit case for grant of bail. Hence, the bail application of the applicant stands rejected.
Dated: 07.01.2014 (Vishnu Chandra Gupta,J.) akverma