Allahabad High Court
Arvind Rajak @ Vasu vs State Of U.P. on 12 September, 2019
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32155 of 2019 Applicant :- Arvind Rajak @ Vasu Opposite Party :- State Of U.P. Counsel for Applicant :- Qazi Vakil Ahmad Counsel for Opposite Party :- G.A. Hon'ble Karuna Nand Bajpayee,J.
This is the second bail application filed on behalf of applicant Arvind Rajak @ Vasu seeking his release on bail in Case Crime No.68 of 2018, u/ss 457, 380, 411 I.P.C., Police Station-Kakadev, District-Kanpur Nagar. First bail application of the applicant was rejected by this Court vide order dated 21.12.2018.
Heard learned counsel for the applicant and learned A.G.A. and also perused the record.
Counsel for the applicant has not raised any fresh argument but has insisted that a second look should be given to the facts of the case. The period of detention has also been pointed out.
Perusal of the earlier bail order shows that primarily the bail application was rejected because of a very long criminal history showing the involvement of applicant in not less than 33 cases which were registered against him. Merits of the case cannot be looked into again and again just because some further time has lapsed. There is therefore no reason to take a different view in the matter. While dealing with an accused of such kind this Court cannot loose perspective of the likelihood of the witnesses or evidence being tampered with and being adversely influenced under the coercive clout of criminality of the accused. The involvement of the applicant in three dozen criminal cases is not an ordinary circumstance and cannot be lightly ignored. It is not a usual feature to find people getting involved or being charged for criminal offences in such large number. When an accused with such kind of chequered criminal history is let loose, he finds unrestricted opportunities to wield his coercive powers and tamper with the evidence. The prospect of a fair trial naturally may get prejudicially affected and the possibility of prosecution evidence remaining intact comes under high peril. It is not needed but to make the factual situation clear the relevant portion of the order passed by this Court while rejecting the first bail application may be extracted herein below :
"Learned A.G.A. has opposed the prayer for bail and has submitted that the applicant is having criminal history of not less than 33 criminal cases and the applicant has been found to have been involved multiple cases of theft and robbery. The details of which have been given as follows :
1. Case Crime No.1175/2017, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
2. Case Crime No.1176/2017, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
3. Case Crime No.347/2018, u/s 394, 411 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
4. Case Crime No.190/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
5. Case Crime No.277/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
6. Case Crime No.281/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
7. Case Crime No.241/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
8. Case Crime No.330/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
9. Case Crime No.322/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
10. Case Crime No.154/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
11. Case Crime No.270/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
12. Case Crime No.137/2018, u/s 394, 411 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
13. Case Crime No.436/2018, u/s 392, 411 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
14. Case Crime No.362/2018, u/s 3/25 of Arms Act, P.S.-Naubasta, District-Kanpur Nagar.
15. Case Crime No.363/2018, u/s 4/25 of Arms Act, P.S.-Naubasta, District-Kanpur Nagar.
16. Case Crime No.365/2018, u/s 41, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
17. Case Crime No.366/2018, u/s 41, 411, 413, 414 I.P.C., P.S.-Naubasta, District-Kanpur Nagar.
18. Case Crime No.476/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
19. Case Crime No.515/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
20. Case Crime No.283/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
21. Case Crime No.525/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
22. Case Crime No.567/2018, u/s 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
23. Case Crime No.552/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
24. Case Crime No.375/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
25. Case Crime No.316/2018, u/s 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
26. Case Crime No.517/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
27. Case Crime No.502/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
28. Case Crime No.604/2018, u/s 380, 411, 413, 414 I.P.C., P.S.-Chakeri, District-Kanpur Nagar.
29. Case Crime No.21/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Kidwai Nagar, District-Kanpur Nagar.
30. Case Crime No.85/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Kidwai Nagar, District-Kanpur Nagar.
31. Case Crime No.41/2018, u/s 380, 411, 413, 414 I.P.C., P.S.-Kidwai Nagar, District-Kanpur Nagar.
32. Case Crime No.171/2018, u/s 457, 380, 411, 413, 414 I.P.C., P.S.-Vidhnu, District-Kanpur Nagar.
33. Case Crime No.378/2018, u/s 379, 411 I.P.C., P.S.-Barra, District-Kanpur Nagar.
Further submission is that the chequered history or the criminal antecedents of accused are sufficient to indicate that the accused is a habitual offender and in case he is released on bail, under the coercive influence of his criminality it will be difficult for the witnesses to depose independently without fear. It is further submitted that in all likelihood the release of the accused shall impair the prospects of a fair trial. It is next submitted that it is also very obvious that a person of this criminal background is also very likely to indulge himself in the activities which shall be detrimental to the society at large. Further submission is that the delinquents of such nature wield enormous criminal clout which in consequence very obviously affects a free trial. Therefore, in the facts and circumstances of the case, the accused should not be released on bail. Learned A.G.A. also relied upon the Apex Court decision Neeru Yadav vs. State of U.P. in Criminal Appeal No.1272 of 2015 decided on 29.9.2015 to emphasis upon the relevance of criminal history in matters of bail."
In the case of Neeru Yadav vs. State of U.P. in Criminal Appeal No.1272 of 2015 decided on 29.9.2015 the Apex Court had the occasion to reflect upon the criminal history of a particular accused and the observations made by the Apex Court in that regard may be apt to recall in this context. The relevant extracts of the aforesaid case may be quoted herein below :
"1. The present appeal, by special leave, on a summary glance may appear that a victim who might have an axe to grind against the accused, the respondent no.2 herein, and further to wreck his vengeance has approached this Court seeking cancellation of his bail, possibly being emboldened by the inaction of the State authorities who have chosen to maintain sphinx like silence or decided to assume the stagnated posture of a splendid sculpture of Rome, and invigorated by the thought that he can singularly carry the crusade, without any support, for he has a cause to vindicate by valiantly exposing the legal infirmities in the order passed by the High Court admitting the 2nd respondent to bail and also unconceal the lackadaisical attitude of the State, but on a keener scrutiny the initial impression melts away and the perversity of the order impugned gets unrolled. Be it stated, at a narrow level it may look like a combat between two individuals, but when analytical scrutiny is done and the State is compelled to wake up from its slumber, the unveiling of facts reveal the contestation between the accord and the discord, the scuffle betwixt the sacrosanctity and the majesty of law on one hand and the maladroit ingenious efforts to get the benefit by the abuse of process of the Court on the other. The analysis has to be made, that being an imperative command, between the honest nidification and the surreptitious edifice.
2. Mr. Pradeep Kumar Yadav, learned counsel for the appellant, with all the distress and the intellectual agony at his command, has submitted that the High Court without appropriate analysis and even without being fully apprised of the fact situation, solely on the basis of parity, as if it is the only foundation or for that matter, the comet that has come off to shine, has enlarged the respondent no.2 on bail totally being oblivious that no accused, however influential he may be or clever he thinks to be, cannot be allowed to nullify the sanctity and purity of law and jettison the age old values "truth in action" and "the firm and continuous desire to render to every one which is due", the two fundamental pillars of justice. The plea, submits Mr. Yadav, apart from cleverness also shows an attempt of the nonchalant mind of the respondent No 2 to engage in fertile imagination possibly thinking that the ground of parity is the real structure of palladium to bring the nemesis of the prosecution and put the Court in a situation to choose between Scylla and Charybdis. And, at this juncture, we must state that both the appellant and the State (though at a later stage) have become Argus-eyed and destroyed the ingenious foundation so astutely built by the accused.
3. ............. It was contended before the High Court that an omnibus role had been ascribed to him and the other accused persons that they had indulged in general firing as a consequence of which one person had died, for he had received three gun shot injuries. It was also contended that there was no credible evidence against the accused persons. The real plank of submission before the High Court, as is perceptible, was that prayer for bail in respect of 11 accused persons including Mitthan Yadav had already been allowed, and there was no justification to deny him the said benefit as he was similarly placed.
4. The prayer for bail was resisted by the Public Prosecutor contending, inter alia, that there was indiscriminate firing by the accused person causing fatal injuries. The High Court, after hearing both the parties, has passed following order:-
"In view of above facts, considering the nature of allegation, severity of punishment and period of detention, without expressing any opinion on merit, it is a fit case for bail. Let the applicant Budhpal @ Buddhu be enlarged on bail on his furnishing a personal bond with two heavy sureties each in the like amount to the satisfaction of court concerned in case crime no. 237 of 2013 under Section 147, 148, 149, 302, 307, 394, 411, 454, 506, 120-B, 34 I.P.C. Police Station Kavi Nagar, District Ghaziabad with the following conditions:
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/intimidate the prosecution witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail." The said order is the subject matter of assail in the present appeal by special leave.
5. At the outset we are obliged to clarify that it is not an appeal seeking cancellation of bail in the strictest sense. It actually calls in question the legal pregnability of the order passed by the High Court. The prayer for cancellation of bail is not sought on the foundation of any kind of supervening circumstances or breach of any condition imposed by the High Court. The basic assail is to the manner in which the High Court has exercised its jurisdiction under Section 439 CrPC while admitting the accused to bail. To clarify, if it has failed to take into consideration the relevant material factors, it would make the order absolutely perverse and totally indefensible. That is why there is a difference between cancellation of an order of bail and legal sustainability of an order granting bail. [See State of U.P. v. Marmani Tripathi[1], Puran v. Rambilas[2], Narendra K. Amin v. State of Gujrat[3], and Prakash Kadam v. Ramprasad Vishwanah Gupta[4].]
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7. ..................
8. It is interesting to note that learned counsel for the appellant and the learned counsel for the State submitted that the respondent no.2 is still in jail despite the order of bail as he is involved in so many cases. We will take up the said issue at a later stage. It is submitted by Mr. Yadav, learned counsel for the appellant that despite the factum of criminal history pointed out before the High Court, it has given it a glorious ignore which the law does not countenance. The solitary and the singular grievance which is propounded with solidity that the High Court should have dwelt upon the same and thereafter decided the matter. Mr. Dash, learned senior counsel (though the State has not moved any application for setting aside the order of bail granted by the High Court for the reasons which are unfathomable) unhesitatingly accepted the said submission. In the additional affidavit, an independent chart has been filed by the State and we find that apart from the present case, there are seven cases pending against the respondent no.2. ........."
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10. ................
11. .................
12. In Prasanta Kumar Sarkar v. Ashis Chatterjee [8], while dealing with the court's role to interfere with the power of the High Court to grant bail to the accused, the Court observed that it is to be seen that the High Court has exercised this discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in catena of judgments on that point. The Court proceeded to enumerate the factors:-
"9. ... among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are:
(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."
13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus:-
"Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters[9].
14. E. Barrett Prettyman, a retired Chief Judge of US Court of Appeals had to state thus:-
"In an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product of restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematised restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man's capabilities, not in a massive globe of faceless animations but as a perfect realisation, of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity.[10]"
15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history- sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner.
16. ................
17. ...............
18. ........... we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order.
19. Resultantly, the appeal is allowed and the order passed by the High Court is set aside. ..........."
The perusal of aforesaid case law reveals that a very strict view against the accused on the point of bail has been adopted by the Hon'ble Supreme Court for the reason of the accused having a shady past blemished with criminal antecedents. The Apex Court therefore, had proceeded to cancel the bail that had already been granted by the High court on the ground of parity with co-accused without giving due consideration to the criminal history of the accused. It may not be out of place to mention here that in the case of Neeru Yadav (supra) the accused was said to have a criminal history of only seven cases out of which ofcourse two cases were that of murder. But even a fleeting glance on the criminal history of the present accused would show that he appears to have been involved in almost similar kind of offences of committing lurking trespass, of committing theft and possessing theft property in such large number that he may be termed to be an incorrigible offender beyond all possibilities of reformation or corrective redemption. Even the present case at hand, in which the applicant seeks his bail relates to the offence under Sections 457 and 380 I.P.C. and the contents of the F.I.R. would show that at the time of incident the informant's family had gone to attend the marriage and the informant had also gone to Lucknow in connection with some matter and after having returned from there, he found his gate closed from inside which aroused suspicion. Somehow he managed his entry in his house from the roof of his neighbour and then he found that the window had been broken and the articles were thrown hither and thither, safe was found opened and it was discovered that the licensee pistol and a lot of gold jewellery and cash had been stolen away. During the course of investigation the accused was arrested and on being questioned by the police, he spilled the beans and made shocking disclosures about the enormous number of crimes of almost similar nature committed by him. Huge amount of recoveries were effected at his instance, the details of which have been narrated in Annexure No.3 which is memo of recovery and which relate to large number of thefts committed by him. Shocking number of thefts committed by the applicant and the huge number of consequential recoveries of highly valuable jewellery of gold and silver and cash does not leave any doubt at least at this stage that there is no dearth of incriminating evidence available against him pointing towards his guilt and guilty mind. Prima facie at this stage, unless the conclusion of the trial shows otherwise later on, the accused appears to be a menace to the society and a peril overhanging all the citizens who ceaselessly toil to earn an honest living. The recognized considerations germane on the point to decide whether an accused ought to be released on bail or not also includes the probability of the accused absconding or fleeing from the course of justice, if released on bail. His character, behaviour, means, position and standing in the society are also relevant. The likelihood of the offence being repeated has also been recognized by the Hon'ble Apex Court as a relevant consideration. The enormous recoveries of gold and silver articles and also that of cash at the instance of applicant cannot be said to be either frivolous or planted at least at this stage. It is not difficult to see that the involvement of applicant in different criminal offences over a period of time speaks about the delinquency and depraved nature of the offender and in the considered opinion of this Court with such long criminal history in the background, it does not appear judicially prudent to release the applicant on bail.
For all these reasons therefore, this Court does not see any good fresh ground to take a different view in the matter than the one that has already been taken by this Court earlier.
Second bail application thus stands dismissed.
Order Date :- 12.9.2019 M. Kumar