Allahabad High Court
Suresh Chandra Tiwari vs State Of U.P. on 30 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 5286
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 41 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40077 of 2018 Applicant :- Suresh Chandra Tiwari Opposite Party :- State Of U.P. Counsel for Applicant :- Saroj Kumar Dubey Counsel for Opposite Party :- G.A.,Imran Ullah Hon'ble Harsh Kumar,J.
Rejoinder affidavit filed by learned counsel for the applicant is taken on record.
Heard Saroj Kumar Dubey, learned counsel for the applicant, Sri Imran Ullah, learned counsel for the first informant, learned A.G.A. and perused the record.
Learned counsel for the applicant contends that the applicant has been falsely implicated in the F.I.R. lodged on 8.1.2018 regarding the alleged incident dated 7.1.2018; that as per averments made in F.I.R., "on 7.1.2018 at about 5:30 p.m. applicant with Vinod Kumar and Nagendra Singh with Sanjay Kumar were coming on separate motorcycles, when a white coloured four wheeler Safari dashed the motorcycle of Sanjay Kumar following which he fell down on the ground and applicant and his associates armed with fire arms came out of the vehicle, abused him and made indiscriminate firing coupled with collective exhortation that Sanjay be killed as he has done much loss in election and the applicant fired at right temple of Sanjay Kumar due to which chaos arose and people started closing their shops after which the accused persons fled away by firing and threatening; that it is also contended in F.I.R. that due to dash of vehicle, Nagendra Singh also sustained injuries;" that the post-mortem report of deceased Sanjay shows that he sustained two gun shot injuries as post-mortem states of two entry wounds and two exit wounds apart from three abrasions which could have been sustained by friction; that injured witness Nagendra Singh in his statement under Section 161 Cr.P.C. has assigned the role of causing two gun shot injuries to co-accused Krishna Kant Tiwari and Sunil and the applicant has also been assigned with the role of firing at Sanjay Kumar but there is no mention that his fire hit Sanjay Kumar; that similarly Umesh Tiwari, who also claims himself to be the eye witness of the incident has made similar statement assigning the role of firing to Krishna Kant Tiwari and Sunil while in the statements of Vinod and Raj Kumar Shukla the applicant has been assigned only with the role of exhortation; that the applicant had no reason or motive to cause death of the deceased and has been falsely implicated on account of political rivalry; that investigation of the matter was handed over to CBCID but at the instance of the first informant the Government withdrawn the order of transferring the investigation to CBCID; that co-accused Vinay Kumar Tiwari and Ajay Tiwari, with whom applicant does not claim parity, have been granted bail by another Bench of this Court vide orders dated 16.11.2018 & 27.6.2018 passed in Criminal Misc. Bail Application Nos.42329 of 2018 & 23556 of 2018 respectively, copies produced for perusal; that the applicant has explained his criminal history of single case under Section 302 I.P.C. in para 32 of the affidavit filed in support of bail application in which case he has been acquitted by the Court; that the applicant has surrendered before the Court on 12.7.2018 and is entitled for bail; that even after surrender by the applicant the first informant has got lodged two more F.I.Rs. against the family members of applicant at Case Crime Nos.532 of 2018 & 601 of 2018 in both of which upon investigation final report have been submitted; that the applicant is a law abiding citizen; that the applicant undertakes that he will not misuse the liberty of bail; that the applicant is in custody since 12.7.2018.
Learned A.G.A. and learned counsel for the first informant vehemently opposed the prayer of bail and contended that the applicant is very influential person having great political influence; that the applicant is the main culprit and has been tampering with the investigation since very beginning; that the applicant is master-mind of entire incident and is the main accused; that wife of applicant lost recent election of Village Pradhani against wife of Sanjay Kumar, deceased due to which he has eliminated him; that inspite of lodging of F.I.R. against the applicant on 8.1.2018 he tried his best to influence the investigation so as to obtain final report against him and obtained an order for transferring the investigation to CBCID by exerting political influence so as to avoid his arrest; that for above reasons the first informant had to file Criminal Misc. Writ Petition No.11013 of 2018 in which following order was passed by this Court on 01.05.2018:-
"Learned counsel for the petitioners submits that the petitioner is informant of the case and deceased was his brother whose wife had contested the election of Village Pradhan against the wife of one Suresh Tiwari, respondent no.7 and sister-in-law of the petitioner had won the said election and just to take revenge of the same, the brother of the petitioner has been done to death by the accused respondent nos. 7 to 12. He next argued that post mortem report of the deceased shows that he received gun shot injuries on his person. Morever, one of the injured, namely, Nagendra Kumar is also said to have received injuries in the incident. The accused respondent nos.7 to 12 have some political influence, hence, wife of accused Anil Tiwari approached one of the Cabinet Minister of the State of U.P. through an application for getting the investigation transferred, however, on the said application the said Cabinet Minister vide order dated 21.1.2018 had written a letter to the Hon'ble the Chief Minister, U.P. and in pursuance of the said letter, Principal Secretary (Home), State of U.P. vide order dated 22.1.2018 directed the respondent no.1 to take further action, copy of which is annexed at page-52 of the writ petition and in pursuance of which the State Government has transferred the investigation on 17.4.2018 from Police Station Karchhana to CBCID, copy of which is annexed at page-23 of the writ petition. He next argued that transfer of the criminal case, particularly a murder case at the behest of wife of accused respondent no.8 at the instance of a Cabinet Minister shows political interference in the investigation. He pointed out that a case of similar nature has come up before this Court in Crl. Writ-PIL No.3883 of 2015 in which an order was passed on 11.2.2015, copy of which is annexed as Annexure-8 (at pages-71 to 74) to the writ petition, thereafter subsequently a Coordinate Bench of this Court on 12.7.2016 called upon the State Government regarding the manner in which the political influence is being exerted in transferring the investigation of a criminal case and the said PIL is still pending, copy of which is annexed at pages-75 & 76 of the writ petition.
The Chief Secretary of the State of U.P. is directed to file his personal affidavit in the matter explaining as to why the accused persons named in the FIR have not been arrested till date and further how the State justifies the political interference in the investigation of a criminal case at the instance of accused.
Issue notice to respondent nos. 7 to 12. Steps be taken within a week.
List the matter on 21.5.2018."
that in spite of passing of above order the applicant did not surrender and at the time of hearing in above writ petition on 21.5.2018 in compliance with order dated 1.5.2018 the Chief Secretary submitted his affidavit to the effect that the order for transferring the investigation to CBCID has been recalled on which the Court passed the following order on 21.05.2018:-
"Learned A.G.A. has pointed out that the impugned order, by which the investigation of the case was transferred to C.B.C.I.D., has been recalled on 7.4.2018 by the State Government. He further pointed out that five accused persons have already been arrested and are in jail. So far as accused-respondent no. 7, Suresh Tiwari is concerned, hectic efforts are being made for his arrest and so far as accused-respondent nos. 8 and 9 are concerned, they have been exonerated during the course of investigation. He further submitted that accused-respondent nos. 10 and 11 have also been arrested.
Sri Rakesh Dubey, learned counsel appearing on behalf of respondent no. 12 is present.
As the impugned order has been recalled by the State Government, there appears no further cause of action remains.
Accordingly, writ petition is disposed of with the hope and trust that accused-respondent no. 7 shall be brought to book as has been ensured by the in-charge Chief Secretary of the State, at the earliest, failing which, it would be open for the petitioner to move an appropriate application."
that in spite of order dated 21.5.2018 and issuance of non-bailable warrants against the applicant due to his political influence the Police could not dare to arrest him and ultimately the first informant had to file another Criminal Misc. Writ Petition No.17791 of 2018 in which following order was passed on 9.7.2018:-
"Learned counsel for the petitioner has drawn the attention of the Court towards order passed by this Court in Crl. Misc. Writ Petition No.11013 of 2018 which was disposed of on 21.05.2018. He states that in spite of the fact that on 21.5.2018 a direction was given to the In-charge Chief Secretary of the State to arrest the accused no. 5, Suresh Tiwari, he has not been arrested till day. Hence the petitioner has approached this Court in view of the liberty granted to him. He states that the respondent no. 5, Suresh Tiwari filed a Crl. Misc. Writ Petition No.15945 of 2018 before this Court concealing the said order dated 21.5.2018 passed by this Court in which instructions from A.G.A. has been sought. The said fact has been mentioned in paragraph no. 21 of the writ petition.
Put up this matter tomorrow along record of Crl. Misc. Writ Petition No15945 of 2018 if the same is not tied up or part heard to any other bench.
Sri Imran Ullah shall inform in writing about this order to Sri S.K. Dubey who is appearing in the said writ petition so that he may appear on the said date."
that on 10.7.2018 following order was passed in above writ petition:-
"Sri S. K. Dubey, learned counsel appearing on behalf of the respondent no.5 states that he has been informed by Sri Imran Ullah, learned counsel for the petitioner about this petition and he may be allowed 24 hours time to file his vakalatnama on behalf of the respondent no.5.
Sri Imran Ullah, learned counsel for the petitioner, Sri S. K. Dubey, learned counsel appearing on behalf of the respondent no.5 and Sri Deepk Mishra, learned A.G.A. for the State are present.
As prayed by Sri S. K. Dubey, learned counsel, appearing on behalf of the respondent no.5, put this matter day-after-tomorrow i.e. 12.07.2018 alongwith the writ petition no.15945 of 2018.
The learned AGA shall also seek instruction in the matter from the authority concerned by the next date fixed in the matter.
Copy of the order be given to learned AGA for compliance."
that only on next date fixed i.e. 12.7.2018 the Court was informed that the applicant has surrendered and on such information the following order was passed by the Court:-
"Sri S.K.Dubey learned counsel for respondent no. 5 states that respondent no. 5 has surrendered and has already been sent to jail.
In view of the above, no further action remains.
Let the matter be consigned to record."
that even thereafter on 25.7.2018 when the bail application of applicant was in hearing in the Court of Additional Sessions Judge, Court No.1, Allahabad the associates of applicant threatened the first informant of which F.I.R. was lodged by him at Case Crime No.601 of 2018, under Sections 323, 504, 506, 352 I.P.C. and on 18.8.2018 they threatened the son of deceased regarding which F.I.R. was lodged by him on 22.8.2018 at Case Crime No.532 of 2018, under Sections 147 & 506 I.P.C.; that in both the above cases due to great political influence of applicant final reports have been submitted, but have not been accepted as yet; that the earlier case under Section 302 I.P.C. against applicant was decided in acquittal as all the witnesses were either won over by the applicant or could not dare to depose against the applicant due to his terror and influence; that the applicant being main culprit and master-mind of the incident who has actively participated in the incident is not entitled for bail on account of minor discrepancy in the statements which are immaterial when chaos was created at the spot; that the evidence is to be adduced during trial; that the incident has been committed in brutal manner during day light; that the case of Vinay Kumar Tiwari and Ajai Tiwari are distinguishable and applicant may not seek parity with them; that the applicant, if released on bail, shall misuse the liberty of bail.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, role assigned to him, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I do not find it a fit case for bail.
The bail application of applicant Suresh Chandra Tiwari in Case Crime No.17 of 2018, under Sections 147, 148, 149, 302, 307, 504, 506, 34, 201, 216 I.P.C. and Section 7 Criminal Law Amendment Act, P.S. Karchhana, District Allahabad, is rejected accordingly.
Order Date :- 30.11.2018 Kpy