Allahabad High Court
Gagan Mishra vs State Of U.P. on 22 April, 2020
Author: Anil Kumar
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?In Chamber Case :- BAIL No. - 10544 of 2019 Applicant :- Gagan Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Onkar Nath Tiwari Counsel for Opposite Party :- G.A.,Vinod Kumar Singh Hon'ble Anil Kumar,J.
In view of Corona Virus epidemic, appearance of learned counsel for parties has been dispensed with owing to the lockdown and the bail is being decided on the basis of material available on record.
Bail application has been filed with regard to Case Crime No. 326/2019, Under Section 147, 148, 149, 323, 307, 302/24 I.P.C. P.S. - Inayat Nagar, District - Faizabad/Ayodhya.
As per case of the applicant-accused, the F.I.R. was lodged by Deepak Yadav S/o Dev Nath Yadav that his cousin father-in-law , namely7 Dev Sharan Yadav (deceased) was coming after taking medicines from Gosaiganj and at about 7 p.m. he reached in front of the house of the accused-applicant and other accused persons including applicant was sitting with the wrong motive to home the litigation in respect to Gram Samaj land is pending and further it has been alleged that accused/applicant attacked and Amaredeep and Ramesh shot fire and further it is mentioned that Ishwar Dutt one of the accused/applicant namely, Mahesh Dutt, Ramakant, Ravi Mishra and Gagan Mishra was armed with lathi danda and they were also involved in the incident. It has been further mentioned that on the alarm Akash reached on spot and he was drove away and the accused/applicant also reached on spot and other nearby resident and villagers arrived on spot and found the deceased dead. It has been further mentioned that while filing to passengers (Raahgirs) also sustained injured who are subsequently admitted in the hospital and it has further mentioned that after the incident accused/applicant burnt his house and ran away.
Sri Onkar Nath Tiwari, learned counsel for applicant argued and pressed the bail applicant ( on telephone) on the following points which are as under:-
(a) That in the present case, the complainant and other family members of the deceased went to the spot where incident took place i.e. in front of the house of the accused-applicant, so they are aggressive. In this regard he has placed reliance on the paragraph No. 4 of the affidavit filed in support of the bail application, which reads as under:-
"That as per prosecution case itself the incident took place in front of the house of the applicant and it is the deceased and their supporters and family members who were collected with the intention of the murder and robbery of the family members of the accused/applicant at 8:00 P.M. and father of the accused/applicant and his brother namely Ramesh and Ishwar Dutt rushed towards road by raising alarms and deceased and his supporters fired with gun and due to darkness of night it could not be find out that who has sustained fire arms and it appears that supporters of the deceased fired himself and thereafter applicant and his family members left his house and ran away and all the gathering who was with the informant and the family of the deceased burned with tractor by putting patrol and kerosene oil and new tractor, 6 motor cycles and all the domestic items and valuable papers, certificates were also burned and jewelry of the sister in laws was burned and on the information through phone to police and fire brigade, police and PAC arrived on spot and informant and supporters of deceased, Gram Pradhan ran away and an FIR was lodged by the grandfather of the accused/ applicant against he informant and other supporters who caused head injury and try to attempt murders of the family members of the accused/applicant under Case Crime No. 337/2019 under Section 147, 148, 149, 307, 395, 454, 436/34 IPC against 21 named and 30 unknown persona and several accused persons have surrendered and have been languishing in jail at Faizabad. The true copy of the First Information Report arising out case Crime No. 337/2019 under Section 147, 148, 149, 307, 395, 454, 436/34 IPC is being annexed herewith as Annexure No. 2."
Co-accused, namely, Mahesh Dutt who has been assigned the same role in the F.I.R. of having hockey stick/ dandas and beaten the deceased, have already been granted bail by this Court vide order dated 25.02.2020 passed in Bail No. 1903 of 2020 (Mahesh Dutt Vs. State of U.P.), operative portion reads as under:-
"Heard learned counsel for the applicant, learned AGA for the State and perused the record.
The instant bail application has been filed on behalf of applicant with a prayer to release him on bail in Case Crime No.326 of 2019, under Sections 147, 148, 149, 323, 307, 302/34 IPC, Police Station Inayat Nagar, District Faizabad/ Ayodhya.
As per the First Information Report, role assigned to the applicant, Ramakant, Ravi Mishra and Gagan Mishra they were assaulted the deceased with the hockey stick and dandas.
Leanred counsel for the applicant submits that the applicant is innocent and he has been falsely implicated in the present. It is further submits that the co-accused Rama Kant having similar role to the applicant has been granted bail by the coordinate Bench of this Court vide order dated 18.2.2020 passed in Bail No. 1662 of 2020. The accused applicant is languishing in jail since 4.7.2019. It is next submitted that the applicant is neither a previous convict nor he has any criminal history. It is further submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tempering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
Let the applicant-Mahesh Dutt be released on bail n Case Crime No.326 of 2019, under Sections 147, 148, 149, 323, 307, 302/34 IPC, Police Station Inayat Nagar, District Faizabad/ Ayodhya on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned."
Further the Co-accused/Ramakant who is also got a similar role has been granted bail vide order dated 18.02.2020 passed in Bail No. 1662 of 2020 (Rama Kant Vs. Stat of U.P.), operative portion reads as under:-
"Heard learned counsel for the applicant as well as learned A.G.A. and perused the record.
Learned Counsel for the applicant has submitted that the applicant is innocent and he has been falsely implicated in this case. The applicant is languishing in jail since 04.07.2019. The Charge-sheet has been filed on 02.08.2019. The applicant has no criminal history and in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial.
Per contra, learned AGA has opposed the prayer for bail but could not dispute the aforesaid facts.
Keeping in view the nature of the offence, arguments advanced by learned counsel for the parties and without expressing any opinion on merits, I am of the view that it is a fit case for bail.
Let the applicant Rama Kant be released on bail in Case Crime No.326 of 2019, under Sections 147, 148, 149, 323, 307, 302/34 IPC, Police Station Inayat Nagar, District Faizabad/ Ayodhya on his furnishing personal bonds and two reliable sureties each of the like amount to the satisfaction of the court concerned.
In the matter in question a cross F.I.R. vide Case Crime No. 337/2019 under Section 147, 148, 149, 307, 395, 454, 436/34 I.P.C. against the the persons, namely, Narendra Yadav vide order dated 06.11.2019 passed in Bail NO. 9605 of 2019, , Arjun Yadav @ Sai Yadav, vide order dated 19.11.2019 passed in Bail No. 10319 of 2019, Ravi vide order dated 27.09.2019 passed in Bail No. 9330 of 2019 and Hridayram vide order dated 26.11.2019 passed in 9845 of 2019 have been granted bail, so the accused-applicant may be granted bail.
Accordingly, it is submitted by learned counsel for applicant that the as the role of the applicant-accused is similar to the co-accused, namely, Mahesh Dutt and Ramakant who have already been granted bail, so the accused-applicant may also be granted bail as he has no previous criminal history.
Sri S.P. Singh, learned A.G.A. on the basis of E-mail which was sent by him, which reproduced hereinbelow has opposed the bail application:
"Sir, Kindly place before the Hon'ble Lordship, following instructions:
The aforesaid applicants along with other co-accused were named in FIR No. 326/2019 registered at P.S. Inayatnagar Distt. Ayodhya, U/Ss 147/148/149/323/324/307/302 and 34 I.P.C. As Sections 149 and 34 IPC had been invoked therefore their role cannot be isolated. Apart from above Charge-sheet No. 307/2019 had already been filed on 2/8/2019 under Sections 147/148/149/323/324/307/302 and 34 IPC and after cognizance now it is being listed for evidence, the next date is fixed for 14.5.2020. the bail is strongly opposed by the State.
In the aforesaid Bail No. 10544/2019, the State had already filed Counter affidavit against the bail applicant, which is available on record. On 12.2.20 the Hon'ble Court has given last opportunity to the complainant to file objection. The Hon'ble Court may pass appropriate order in the given facts and circumstances of the case. The latest instruction furnished by is also being forwarded."
On behalf of the State, a counter affidavit has been filed and as per the fact stated therein, the State has opposed the bail application on the basis of following documents. namely,:-
(i) Postmortem report of the deceased (Annexure No. CA-1)
(ii) Statement given by the complainant as well as eye witness under Section 161 Cr.P.C.(Annexure No. CA-2 & 3)
(iii) Recovery memo (Annexure - CA-4) However, in the counter affidavit, the State hs not disputed the fact that applicatn has got no previous criminal history.
On behalf of the complainant, a counter affidavit has already been filed and the bail application has been opposed on the basis of the averments as made in the said counter affidavit.
I have gone through the material on record as well as taking into consideration the argument which has been made by learned counsel for applicant, through E-mail sent by Sri S.P. Singh, learned A.G.A., the admitted position which emerged out is that co-accused, namely, Mahesh Dutt and Ramakant who have got identical role as per the version of the F.I.R. have already been granted bail by this Court (as stated hereinabove).
So, I am of the considered opinion that the accused-applicant is also entitled for bail on the ground of parity.
Accordingly, the bail application is allowed.
Let the applicant, Gagan Mishra, involved in Case Crime No. 326/2019, Under Section 147, 148, 149, 323, 307, 302/24 I.P.C. P.S. - Inayat Nagar, District - Faizabad/Ayodhya, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vi) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court of Allahabad and shall make a declaration of such verification in writing.
(vii) Difficulty arising in arranging of sureties because of lockdown has already been dealt with by a Division Bench of this Court in Public Interest Litigation (PIL) No.564 of 2020. Directions issued therein shall be applicable in the present case which are as follows:-
"Looking to impediments in arranging sureties because of lockdown, while invoking powers under Article 226 and 227 of the Constitution of India, we deem it appropriate to order that all the accused-applicants whose bail applications came to be allowed on or after 15th March, 2020 but have not been released due to non-availability of sureties as a consequence to lockdown may be released on executing personal bond as ordered by the Court or to the satisfaction of the jail authorities where such accused is imprisoned, provided the accused-applicants undertakes to furnish required sureties within a period of one month from the date of his/her actual release."
Order Date :- 22.4.2020 Ravi/