Allahabad High Court
Om Prakash Mishra And Another vs State Of U.P.And Another on 4 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 85 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9326 of 2022 Applicant :- Om Prakash Mishra And Another Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Ajeet Singh,Anil Kumar Yadav,Shivam Yadav Counsel for Opposite Party :- G.A. Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Sri Shivam Yadav, learned counsel for the applicants, learned A.G.A. for the State and perused the papers on record.
2. This application has been filed by applicants with a prayer to grant them anticipatory bail in Case Crime No.341 of 2016, under sections- 323, 392, 427, 506 I.P.C., Police Station- Cantt, District- Varanasi.
3. As per prosecution case, one Jitendra Nath Mishra, who was practicing as a Lawyer in Civil Court, Varanasi was murdered on 08.01.1999 by his co-villagers namely Chandra Bhushan Mishra, Shiv Prakash Mishra, Jay Prakash Mishra and Sujeet Kumar Mishra by shooting him when he was returning from the Court. The F.I.R. was registered as Case Crime No.03 of 1999 at Police Station- Mirzamurad. The trial was held by an Additional Session Court in Varanasi and all the accused were convicted and sentenced to life imprisonment. This conviction and sentence was upheld by the High Court of Allahabad and thereafter by the Supreme Court. The first informant- Sanjay Kumar Mishra, Advocate and his brother Surendra Kumar Mishra were the only eye-witnesses of the murder, therefore, they were being continuously threatened not to give evidence lest they shall face dire consequences. The accused persons are having a long criminal history of 16 cases as below:-
(i) Case Crime No.03/1999, under sections- 302, 506 I.P.C., Police Station- Mirzamurad, District- Varanasi.
(ii) Case Crime No.04/1999, under sections- 352, 504, 506 I.P.C., Police Station- Mirzamurad, District- Varanasi.
(iii) Case Crime No. Nil/2000, under sections- 307, 504, 506 I.P.C., Police Station- Kachhwa, District- Mirzapur.
(iv) Case Crime No.09/2002, under sections- 147, 148, 504, 506, 337 I.P.C., Police Station- Mirzamurad, District- Varanasi.
(v) Case Crime No.05/1999, under sections- 3(1) of U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station- Mirzamurad, District- Varanasi.
(vi) Case Crime No. -/1999, National Security Act (NSA), Police Station- Mirzamurad, District- Varanasi.
7. Case crime no.- /90, Sections 419, 420, 467, 468, 471 I.P.C., Police Station- Manduadidh, Varanasi
8. Case crime no.- /2000, Sections 3(3) Goonda Act, Police Station- Mirzamurad.
9. Case crime no.- 32/95, Sections 307, 504, 506 I.P.C., Police Station- Mirzamurad Janpad, Varanasi.
10. Case crime no.- 134/97. Sections 307, 504, 506 I.P.C., Police Station- Mirzamurad Janpad, Varanasi.
11. Case crime no.- 676/16, Sections 376, 504, 506, 452 I.P.C., Police Station Rohniyan Janpad, Varanasi.
12. Case crime no.- 07/16, Sections 307, 392, 452, 504, 506 I.P.C., Mirzamurad Janpad, Varanasi.
13. Case crime no.- /16, Sections 307, 392, 452, 354B, 504, 506, 427 I.P.C., Mirzamurad Janpad, Varanasi.
14. Case crime no.- 427/10, Sections 323, 504, 506 I.P.C., Rohniyan Janpad, Varanasi.
15. Case crime no.- , Sections 323, 504, 506 I.P.C., Rohniyan Janpad, Varanasi.
16. Case crime no.- /2006 All the accused persons were operating as a gang with Chandra Bhushan Mishra as the gang leader. As they have been convicted and are lodged in jail, therefore, they are enimical to the informant.
On 07.02.2016, when informant's brother Surendra Kumar Mishra was returning from his relatives house, Om Prakash, Mansha Ram, Ravindranath, Jitendra, Devendra and Arjun stopped him, physically assaulted him, damaged his motor-cycle and also snatched a silver ornament (sikdi) and Hanuman locket from his neck and threatened him that if he continued to take action against them, he will be shot in public view and that he, his brother and friend Ratan Singh Yadav shall be foisted with false cases and will not be let out of jail. Before this incident, one Devendra Kumar Yadav asked for Rs.5 lacs from them and tried to put pressure on him into submitting an affidavit before the Supreme Court lest they too will not be spared.
4. On the basis of this F.I.R., the investigation commenced, but a final report was submitted by the police. Thereafter, on a protest petition accused persons including the present applicant were summoned under sections- 323, 392, 427, 506 I.P.C. Now the applicants are before this Court for grant of anticipatory bail.
5. It is contended on behalf of the applicants that a false story has been cooked up against them. The applicants had nothing to do with the previous case of murder as the case has concluded and the accused persons has been convicted by the Sessions Court upto Supreme Court. Hence, there is no question of influencing the witness. It is also contended that the police, after investigation did not find substance in the allegations, therefore, submitted a Final Report and they have been summoned under sections- 323, 392, 427, 506 I.P.C. on the basis of uncross-examined testimony of the informant and his witnesses. Hence, their liberty needs to be protected by indulgence of this Court.
6. The application for anticipatory bail is forcefully opposed on behalf of the State as well as opposite party no.2/the informant. Following facts and contentions have been placed before me in this connection:-
(i) The F.I.R. in this case was registered on 23.05.2016 on the basis of an application moved under section 156(3) Cr.P.C. After investigation, a Final Report was submitted. It is argued on behalf of the informant that the police never wanted to register the F.I.R. Therefore, the informant's side had to take shelter of the Court for filing the same by moving an application under section 156(3) Cr.P.C. The police under the influence of political connections of the accused side did not carry on investigation in a fair manner and, therefore, submitted the Final Report.
(ii) The background of the case is quite important as the father of the informant was murdered by the associates of the present applicants. The incident which occurred afterwards is a fall out of the judgement given against them in the aforesaid murder case. The applicants have a long criminal history and criminal antecedents and have been acting in an organized manner and have a strong clout in the political as well as administrative circles.
(iii) In case they are admitted to anticipatory bail, there is a strong probability of their misusing the liberty and influencing the witnesses to dissuade them from giving the statements against them.
7. As far as the criminal history of the applicants is concerned, they have admitted that currently there are two cases registered against them.
(a) Case Crime No.0033 of 2016, under sections- 147, 148, 307, 392, 452, 354B, 294, 324, 323, 504, 427, 506 I.P.C., Police Station- Mirzamurad, District- Varanasi.
(b) Case Crime No.0341 of 2016, under sections- 395, 384, 323, 427, 506 I.P.C., Police Station- Cantt, District- Varanasi.
8. The anticipatory bail, in my view, is not a routine remedy to be granted in a routine manner. In certain respects, the parameters for grant of anticipatory bail are fundamentally different from those applicable in matters of grant of regular bail. The power to grant anticipatory bail being a discretionary one calls for its exercise in judicious manner and not as a matter of course. The object of anticipatory bail is to protect a person from humiliation at the hands of unscrupulous litigant. It is for the applicant/accused to prima-facie show that the charge/accusation against him is groundless and has been imputed for some oblique motives. In my view, the power is ordinarily to be exercised for good that too sparingly where indulgence of Court may be found necessary to prevent misuse of arms of law and to further the cause of justice.
9. I considered the gravity and nature of accusations, backdrop of the incident as well as criminal antecedents of the applicants. It may also be noted that this case is now not at the level of investigation and is seized by the court concerned. Any intervention at this stage by this Court may be amount to an interference in the regular process of law. I do not find it a fit case for grant of anticipatory bail.
10. The application for anticipatory bail is accordingly dismissed.
11. However, any of the observations made herein shall not be taken as a comment on merits of the case by the court below and the court below shall be at liberty to form its own opinion at any stage of the case.
Order Date :- 4.1.2023 Saif