Allahabad High Court
Abhai Nath Chaubey vs State Of U.P. And Another on 10 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2025
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 26.09.2019 Delivered on 10.12.2019 Court No. - 34 Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 44030 of 2017 Applicant :- Abhai Nath Chaubey Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Upendra Upadhyay Counsel for Opposite Party :- G.A.,P.K. Singh Hon'ble Sudhir Agarwal,J.
1. This is an application under Section 439 Cr.P.C. filed by Informant-applicant praying for cancellation of bail granted to opposite party no.2 i.e. Ajay Singh @ Ajay Mardah vide order dated 23.10.2017 passed by Sri Alok Saxena, Sessions Judge, Varanasi, in Bail Application No.2954 of 2017 in Case Crime No.378 of 2015 under Sections 147, 148, 149, 302 and 120 B, IPC, Police Station Chaubepur, District Varanasi.
2. The facts in brief, as evident from record are that First Information Report (hereinafter referred to as "FIR") being Case Crime No.378 of 2015 dated 4.12.2015 under Sections 147, 148, 149, 302 and 120 B, IPC was registered at Police Station Chaubepur, District Varanasi on the information by Abhai Nath Chaubey (hereinafter referred to as "Informant-applicant"). FIR alleges that on 04.12.2015 Ram Bihari Chaubey, father of Informant - applicant was reading newspaper sitting in the cottage (madhai), situate near the gate of his house. On or about 7:15 a.m., two young persons entered the house through main gate. Kids were playing thereat and from them, above two young lads enquired about Ram Bihari Chaubey. On being told that he was in the cottage, above two persons straightaway went to the cottege and opened several rounds of fire upon Ram Bihari Chaubey. Hearing the sound of firing, Informant-applicant came out of his house and saw these two persons running towards gate of the house and 2-3 persons were already standing there and all of them ran away on two motorcycles. Informant-applicant reached inside the cottage, found his father in badly injured state, bleeding, lying on chair. With the help of his servant Sandeep, cousins Pramod and Pawan, Informant-applicant brought his father to Singh Medical, Varanasi, for treatment, wherefrom he was referred to B.H.U. but doctors declared him dead when reached B.H.U.
3. This FIR was registered against unknown persons. Police made investigation and arrested accused -opposite party no.2 as also another one Ashutosh Singh alias Sunny Singh, said to be co-accused in the crime. Co-accused Ashutosh Singh alias Sunny Singh was enlarged on bail by this Court vide order dated 20.09.2017 passed in Criminal Misc. Bail Application No.35726 of 2017.
4. The bail application of accused-opposite party-2 was opposed by Informant-applicant before Sessions Court. After considering rival submissions as also all other relevant facts and that the accused-opposite party-2 was arrested on 06.4.2017 and was already in jail for 7 months, granted bail vide order dated 23.10.2017.
5. Thereafter Informant-applicant has come to this Court and filed this bail cancellation application on 09.11.2017.
6. When this application was pending, it appears that State of U.P. through Station Officer, Police Station, Chaubepur, Varanasi, also filed Bail Cancellation Application No.89 of 2018 in the Court of Sessions Judge which came up for consideration before Additional Sessions Judge, Court No.8, Varanasi on 25.7.2018. The ground taken by State are that material on record was not considered by Sessions Judge whiling allowing bail, gravity of offence was not looked into, criminal history was not properly appreciated and also the fact that another co-accused Nagendra Singh was declined bail by Sessions Court vide order dated 22.12.2017 was ignored.
7. Sri Narendra Kumar Jha, Addl. Sessions Judge, Court No.8, Varanasi, by a detailed order dated 25.07.2018, has found no ground for cancellation of bail and application preferred by State has been rejected.
8. When this application was pending, Informant-applicant filed Criminal Misc. Writ Petition No.850 of 2018, Abhay Nath Chaubey vs. State of U.P. and 3 Ors., seeking a mandamus commanding Additional Director General of Police, Varanasi Zone Varanasi to decide his application dated 19.11.2017. The above writ petition was disposed of vide order dated 05.04.2018 requesting Court concerned to decide bail cancellation application within four months.
9. Present application has been filed seeking cancellation of bail on the facts and ground as under:
(i) Murder of Ram Bihari Chaubey is a political murder, inasmuch as, he was a social worker and contested Assembly Election of Uttar Pradesh on the ticket of Bahujan Samajwadi Party from Sakaldeeha Constituency against Sushil Singh, who won 2012 election defeating Ram Bihari Chaubey from the same Constituency.
(ii) Sushil Singh is a nephew of notorious Mafia Brijesh Singh. He was annoyed since Informant-applicant's father contested election against him.
(iii) Brijesh Singh has a long criminal history, having more than 41 cases registered against him including heinous crimes and mostly under Section 302 IPC and Arms Act. His area of operation is not confined to Uttar Pradesh but extends to Bihar, Maharashtra, West Bengal, Jharkhand etc. He was also having cases under Terrorist and Disruptive Activities (Prevention) Act and Maharashtra Control of Organised Crime Act. Details of all these cases have been given in affidavit accompanying bail cancellation application.
(iv) Opposite party 2 is a contract killer. He was hired by Sushil Singh for the aforesaid crime. He was actual shooter as per statement of co-accused recorded by Police during investigation. Police found his involvement on the basis of various evidence and also as per electronic surveillance and location of opposite party 2 based on his phone numbers.
(v) Smt. Renuka Chaubey, wife of Informant-applicant, who had seen opposite party 2, testified against him. Opposite Party-2 has also a long criminal history having almost 21 cases registered against him, details whereof is given in Annexure 4 to affidavit accompanying bail cancellation application. The cases involve heinous crimes under Section 302 IPC, Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, U.P. Control of Goondas Act, etc.
(vi) Opposite party 2 is a notorious criminal and under patronage of political person like Sushil Singh. He is likely to prejudice trial and witnesses may not dare for testimony due to fear.
(vii) Opposite party 2 also threatened Informant-applicant and his family members for not pursuing the case at all.
(viii) Brother of Informant-applicant has also filed Criminal Misc. Writ Petition No.18872 of 2017, Amarnath Chaubey vs. Union of India and 3 Ors., seeking a direction for investigation by CBI and writ petition is pending.
10. It is in these circumstances, it has been requested that bail granted to opposite party 2 be cancelled.
11. Learned counsel for opposite party 2 on the contrary submitted that there is no material on record to show that opposite party 2 has misused liberty of bail and violated any conditions imposed upon him; there is no material to show that he has ever threatened Informant-applicant or any witness or has otherwise made any attempt to influence or prejudice the trial in any manner. It is submitted that only on account of enmity, this application for cancellation of bail has been filed.
12. I have heard Sri Upendra Upadhyay, learned counsel for applicant, Sri P.K.Singh, learned counsel for opposite party no.2 and learned A.G.A. for opposite party no.2.
13. It is not a case where this Court has to examine whether opposite party no.2 deserve to be enlarged on bail or not but here he has been granted bail and Informant-applicant has come to this Court with request that bail granted to opposite party 2 should be cancelled.
14. Considerations and relevant aspects by a Court while granting a bail are different than those when an application for cancellation of bail has come up before the Court.
15. A three-Judges Bench of Supreme Court in State (Delhi Administration) vs. Sanjay Gandhi (1978) 2 SCC 411 had an occasion to consider an order dated 11.04.1978 passed by Delhi High Court rejecting Delhi Administration's application for cancellation of bail of respondent Sanjay Gandhi. Court observed that rejection of bail, when bail applied is one thing; cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves review of a decision already made and can, by and large, be permitted only, if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow accused to retain his freedom during the trial.
16. While considering degree of burden of prove lie upon prosecution or complainant/Informant, when an application for cancellation of bail moved, is not to the extent of proving by a mathematical certainty or beyond reasonable doubt but it must establish its case by showing on a preponderance of probabilities that accused has attempted or may attempt to or tamper or has tampered with witnesses. It may also be proved by test of balance of probabilities that accused has abused his liberty or it may show that there is reasonable apprehension that he will interfere with course of justice. Court approved Bombay High Court decision in Madhukar Purshottam Jondkar vs. Talab Haji Hussain 60 Bombay Law Reporter 465 that test adopted by the Court would be, whether material placed before it is such as to lead to the conclusion that there is a strong prima facie case that accused if allowed to be at large he would tamper with prosecution witnesses and impede course of justice. Mere unfounded apprehension or self imagined threat by prosecution or Informant-Complainant would not justify cancellation of bail, granted to accused.
17. In Raghubir Singh vs. State of Bihar (1986) 4 SCC 481, Court said that grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc.
18. It was also held that above grounds are illustrative and not exhaustive. Rejection of bail stands on one footing but cancellation of bail is a harsh order since it interferes with liberty of individual and must not be lightly resorted to.
19. Above decision was followed in Manjit Prakash and Ors. vs. Shobha Devi and Anr. (2009) 13 SCC 785 as also in Pooja Bhatia vs. Vishnu Narain Shivpuri and others (2014)13 SCC 492.
20. In Pooja Bhatia (supra), considering conduct of accused i.e. charge of throwing acid on complainant, Court held that it was a serious aspect and therefore, accused is not entitled to continue with the benefit of bail.
21. In Dolat Ram and others vs. State of Haryana (1995) 1 SCC 349, Court said that rejection of bail in a non-bailable case at initial stage and cancellation of bail so granted, has to be dealt with and considered on different basis. Very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail, already granted. Court further said that generally speaking grounds of cancellation of bail, broadly i.e. illustrative and not exhaustive are : (i) interference or attempt to interfere with the due course of administration of justice; (ii) evasion or attempt to evade due course of justice; (iii) abuse of the concession granted to the accused in any manner; (iv) Satisfaction of Court, on the basis of material placed on record of possibility of accused absconding.
22. Court also reminded that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying concession of bail during trial.
23. In Prahlad Singh Bhati vs. NCT, Delhi (2001) 4 SCC 280 Court said that while granting bail, nature of accusations, severity of punishment, if accusation entails a conviction, nature of evidence in support of the accusations should be kept in mind. Further, reasonable apprehensions of witnesses being tampered with or apprehension of there being a threat for complainant also need be weighed by Court. No discussion of entire evidence to form an opinion whether evidence would established guilt beyond reasonable doubt is expected at the stage of considering matter of bail but prima facie satisfaction of Court in support of charge must be there. Lastly, Court should also consider whether prosecution has element of genuineness or there is some fragility. In case of any doubt as to genuineness, normal course is to grant bail. To the same effect are the observation made in Chaman Lal vs. State of U.P. (2004) 7 SCC 525.
24. In Ram Govind Upadhyay vs. Sudarshan Singh (2002) 3 SCC 598 it was held that grant of bail though discretionary in nature, yet such exercise cannot be arbitrary, capricious and injudicious. Heinous nature of crime warrants more caution.
25. In CBI, Hyderabad vs. Subramani Gopalakrishnan and others (2011) 5 SCC 296, in para 23, Court said :
"....that there is difference between yardstick for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."
26. Position, influence and resources of accused have also been held relevant factors to adjudge whether accused is likely to interfere with administration of justice, trial or tamper with witness or evidence.
27. In State Represented by the C.B.I. vs. Anil Sharma (1997) 7 SCC 187, anticipatory bail was granted by Himachal Pradesh High Court and C.B.I. approached for cancellation of bail stating that accused was a former Minister of Himachal Pradesh and being a high authority in power is likely to disrupt even investigation but High Court did not accept application for cancellation of bail. On appeal, Supreme Court accepted C.B.I. contention and observed that in case of such highly influenced political person, the very interrogation and investigation may become a mere ritual hence Court cancelled order of anticipatory bail.
28. In Padmakar tukaram Bhavnagare and Ors. vs. The State of Maharashtra and Ors. (2012) 13 SCC 720, Supreme Court while confirming order of anticipatory bail took into accunt that accused are aged and rustic, not influential persons holding high office who can bring pressure upon investigating agency and it is unlikely that Police would find it difficult to interrogate them because they are protected by an order granting anticipatory bail. That is how judgment in State Represented by the C.B.I. vs. Anil Sharma (supra) was also distinguished. However, Court also clarified that grounds for cancellation of bail, broadly, are interference or attempt to interfere with due course of justice or abuse of concession granted to the accused in any manner but an order of bail can also be cancelled where it is found to be perverse, passed ignoring evidence on record or taking into considering irrelevant material. Relying on Dinesh M.N. (S.P.) vs. State of Gujarat (2008) 5 SCC 66 Court said that such vulnerable bail order must be quashed in the interest of justice.
29. In State of Maharashtra and Ors. vs. Pappu (2014) 11 SCC 244, accused was convicted under Section 302 read with 120-B IPC for hatching criminal conspiracy in killing of deceased Inder Bhatija. In appeal, High Court while admitting appeal, enlarged accused on bail and this order of bail was challenged in Supreme Court by the State on the ground that accused was involved in as many as 52 cases, out of which 20 cases offences were registered against him before going to jail and while he was in jail; and 32 cases were registered when he was released by Court on conditional bail. The defence taken on behalf of accused, besides other, was that he has already spent 9 years in jail during pendency of trial and no witness has supported prosecution case and that it was a political rivalry in which he was falsely implicated. Supreme Court said that reason given by High Court that father and wife of deceased have turned hostile, cannot be a ground to grant bail since there were other witnesses and material available. High Court should not have ignored the fact that accused was involved in as many as 52 cases out of which 20 were registered before going to jail and during stay in jail, and whenever he was on bail or conditional bail, 32 cases were registered. Court also found that in some cases accused was acquitted but still 15 trials were pending in which two cases were under Section 302 read with 120B IPC. Having said so, Court observed that since accused was in jail for 9 years and as per pendency, High Court would have taken a large number of years in deciding appeal, therefore, Court should decide appeal expeditiously and with the above direction, appeal was allowed and order of bail granted by High Court was set aside.
30. In Neeru Yadav vs. State of U.P. (2014)16 SCC 508, this Court had granted bail to accused for offences punishable under Sections 147, 148, 149, 302, 307, 394, 411, 454, 506, 120B and 34 IPC on the ground of parity as another accused Ashok was already enlarged on bail. The wife of deceased filed appeal for setting aside order of bail granted by this Court. Court considered various earlier authorities and said in para 13 of judgment as under :
"...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."
31. Thereafter, referring to 15 cases registered again accused showing that he was a history-sheeter and mostly under Section 302 IPC, order of bail was set aside. Court observed that there has to be a balance between personal liberty of an individual and peace and harmony of Society. No individual interest can be allowed to create a concavity in the stem of social stream otherwise it would bring chaos and anarchy in the Society. Relevant observations made in this regard are reproduced as under :
"....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." (emphasis added)
32. In Virupakshappa Gouda and Ors. Vs. The State of Karnataka and Ors. (2017) 5 SCC 406, application for bail was rejected by Sessions Judge as also High Court. Even second bail application was rejected by Sessions Judge as also High Court. This time accused went to Supreme Court also but Special Leave Petition was also rejected. Then a third application was filed before Additional Sessions Judge, Raichur, which was allowed and accused were enlarged on bail. Informant brought the mater to High Court under Section 439(2) Cr.P.C. seeking cancellation of bail. He succeeded and High Court cancelled bail. Thereafter accused brought the matter to Supreme Court. Court made serious observations in respect of approach of Trial Court in granting bail by treating filing of charge-sheet as a change of circumstance but ignoring that already two bail applications were rejected and one has attained finality up to Supreme Court. Court said that bail application cannot be allowed solely or exclusively on the ground that in criminal jurisprudence accused is presumed to be innocent till found guilty by the Court. Trial Court has relied on Supreme Court judgment in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 wherein it was observed that object of bail is to secure appearance of accused at trial and not punitive or preventive. Deprivation of liberty should be considered a punishment. Court should appreciate that punishment begins after conviction and every man is deemed to be innocent until duly tried and found guilty. Supreme Court said that above observations in Sanjay Chandra (supra) have their relevance but cannot be made applicable in each and every case for grant of bail. It all depends upon factual matrix of each case, nature of crime and manner in which it was committed. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of factual score and understanding of pronouncements in the field. Court relied on Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr. (2010) 14 SCC 496 where it was opined that while exercising power for grant of bail, Court must to keep in mind certain circumstances and factors as under :
"(i) whether there is any prima facie or reasonable ground to be believed 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." (emphasis added)
33. It also held that where a bail is granted considering irrelevant materials or keeping out of consideration relevant material, the order becomes vulnerable and warrants annulment. The order of High Court setting aside bail granted by Trial Court was upheld by Supreme Court.
34. In Dataram Singh vs. State of Uttar Pradesh and Ors. (2018) 3 SCC 22 Court enlarged to certain more aspects for granting bail, whether accused was arrested during investigation when he had best opportunity to tamper with evidence and influence witness or Investigating Officer found it not necessary to arrest accused during investigation and this factor would go in favour of accused. Similarly, whether accused was participating in investigation regularly and not absconding or avoiding investigation. Further, whether accused is a first-time offender or is accused of other offences and if yes, nature of such offences and his general conduct. Poverty or deemed indigent status of an accused, Court held, is also an important factor to be taken note. It observed that grant of bail is a rule and refusal is an exception. Finding that accused was not said to be a person of shady character and there was no history of his involvement in any unacceptable activity etc., accused was granted bail, though it was rejected by Trial Court as well as High Court.
35. In State of Orissa and Ors. Vs. Mahimananda Mishra and Ors. (2018) 10 SCC 516, accused was granted bail by High Court and it was set aside by Supreme Court. Court observed that accused was a powerful and influential person in his locality and even Investigating Officer apprehends that he may influence witnesses by intimidating them and this may influence trial by creating fear in the minds of witnesses. Court also looked into past attempt of accused to evade process of law and then found that order of grant of bail was not proper and it was set aside.
36. In X vs. The State of Telangana and Ors. (2018)16 SCC 511, accused, a Film Producer, based in Mumbai, was charged of offences under Sections 376, 342, 493, 506, 354(C) of IPC. Accused got anticipatory bail from Sessions Judge on 13.01.2017 and had advantage of that order for about eight months. The said order was cancelled by Sessions Judge on the ground that accused has not disclosed that he was also accused in 2G Spectrum case. This cancellation order was affirmed by High Court and also by Supreme Court. Thereafter accused moved a bail application under Section 439 Cr.P.C., which was allowed by High Court and accused was released on bail. This order was challenged in appeal before Supreme Court. Upholding the said order, Court said that bail once granted should not be cancelled unless a cogent case, based on supervening event has been made out.
37. In Seema Singh vs. Central Bureau of Investigation and Ors. (2018) 16 SCC 10 bail granted to accused by High Court in the case registered under Sections 498-A, 302, 120-B IPC was challenged in appeal before Supreme Court. Court noticed that accused-2's bail application was rejected by Special Judicial Magistrate, CBI, Ghaziabad and thereafter bail was granted by High Court. Court said that gravity of offence is a relevant factor but not the sole ground to deny bail if there are other overwhelming circumstances justifying grant of bail. Noticing special feature, Court upheld order of High Court granting bail.
38. Thus, the broad principles, which are to be considered by this Court while granting bail and when bail is already granted but an application for cancellation has come up for consideration, as discussed above, show that there is no thumb rule in both the situations. However, it is true that factors relevant for grant of bail are different and approach required to be adopted while considering application for cancellation of bail is different.
39. Now, in the backdrop of aforesaid exposition of law, I proceed to consider facts of this case.
40. A perusal of order dated 23.10.2017 granting bail, passed by Sessions Judge shows that he has relied on following circumstances and factors to enlarge accused-opposite party on bail:
(i) Accused is not named in FIR;
(ii) His name surfaced in the crime after about seven months from the date of occurrence and that too not during investigation of Police but on the basis of some private kind of investigation by complainant;
(iii) Though accused has criminal history but that cannot be a sole ground to consider his claim for parity with accused Anshu alias Sanny Singh, who was already granted bail by order dated 20.9.2017 in Criminal Misc. Bail Application No.35726 of 2017;
(iv) Cases registered against accused included seven cases under Section 302 IPC whereagainst he was already acquitted in five. In other two cases one was registered in 2002 in District Ghazipur and another in 2005 in Sant Ravidas Nagar. One case under Section 307 IPC was registered in 2003 in Lucknow. In all these cases accused was on bail;
(v) One case under Section 3(1) of U.P. Goonda Act was registered in 2003 in District Ghaziabad.
(vi) Hence virtually there was no fresh case registered against accused in the preceding 7-8 years involving any serious crime.
41. List of criminal cases registered against accused, which has been placed before this Court shows area of operation of accused opposite party 2 is District Ghazipur, Varanasi, Lucknow and Sant Ravidas Nagar. List of cases mentioned in the history sheet of accused opposite party 2 is as under :
i. Case Crime No.Nil/96 under Section 41/411 IPC P.S. Tugalpur, District Ghazipur.
ii. Case Crime No.172/06 under Section 25 Arms Act, P.s. Tugalpur, District Ghazipur.
iii. Case Crime No.186/97 under Sections 147, 148, 149, 302 IPC and 3(2)10 S.C./S.T. Act, P.S. Kotwali, District Ghazipur.
iv. Case Crime No.238/02 under Sections 3/4 U.P. Control of Goondas Act, P.S. Kotwali, District Ghazipur.
v. Case Crime No.598/02 under Sections 302, 147, 148, 149 IPC and 7 Criminal Law Amendment Act, P.S. Mardah, District Ghazipur.
vi. Case Crime No.376/2000 under Section 406 Cr.P.C., P.S. Mardah, District Ghazipur.
vii. Case Crime No.57/03 under Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, P.S. Mardah, District Ghazipur.
viii. Case Crime No.256/03 under Sections 3(1) U.P. Control of Goondas Act, P.S. Mardah, District Ghazipur.
ix. Case Crime No.9/04 under Sections 147, 148, 149, 307 IPC and Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, P.S. Cantt., District Lucknow.
x. Case Crime No.257/04 under Section 110 Cr.P.C., P.S. Mardah, District Ghazipur.
xi. Case Crime No.289/04 under Sections 302, 307 IPC and 7 Criminal Law Amendment Act, P.S. Sigra, District Varanasi.
xii. Case Crime No.238/04 under Sections 302, 307 IPC and 7 Criminal Law Amendment Act, P.S. Sigra, District Varanasi.
xiii. Case Crime No.14 C.R.No.102/04 under Sections 504, 506 IPC, P.S. Mardah, District Ghazipur.
xiv. Case Crime No.587/04 under Section 302 IPC, P.S. Cantt., District Varanasi.
xv. Case Crime No.835/04 under Sections 3(1) U.P. Control of Goondas Act, P.S. Mardah, District Ghazipur.
xvi. Case Crime No.374/05 under Sections 110 Cr.P.C., P.S. Mardah, District Ghazipur.
xvii. N.C.R.No.133/05 under Section 506 IPC, P.S. Mardah, District Ghazipur.
xviii. Case Crime No.98/06 under Sections 110 Cr.P.C., P.S. Mardah, District Ghazipur.
xix. Case Crime No.243/04 under Sections 364, 302, 120B IPC, P.S. Cantt., District Ghazipur.
xx. Case Crime No.230/05 under Sections 302, 307, 120B IPC, P.S. Gopiganj, District Sant Ravidas Nagar.
xxi. Case Crime No./15 under Sections 110 Cr.P.C., P.S. Gopiganj, District Sant Ravidas Nagar.
42. The long list of criminal cases registered against opposite party- 2 shows that he is not an innocent and simple person as claimed. The fact that he has been acquitted in some cases may reflect on the fear of witnesses for not coming forward to give evidence. Here also allegations in FIR are about a broad day light murder and that too in the own residence of deceased. Informant is an eye-witness. Trial Court's approach that no new case has been registered against him in last 7-8 years does not diminish or dilute criminal activities of accused - opposite party 2.
43. In my view, such a person if enlarged on bail, there is every likelihood of trial being influenced and may not proceed fairly and objectively. I refrain myself in making further observations as it may prejudice trial but have no hesitation in holding that it is a fit case where bail granted to accused opposite party 2 cannot be held to be a valid exercise of discretion on the part of court below and bail order deserves to be cancelled.
44. Application is accordingly allowed. Order dated 23.10.2017 passed by Sessions Judge, Varanasi, whereby opposite party 2, Ajay Singh alias Ajay Mardah, has been enlarged on bail, is hereby set aside. Opposite party 2 shall be taken into custody forthwith and sent to jail.
Order Date :- 10.12.2019.
KA