Allahabad High Court
Jagannath Yadav Second Bail vs State Of U.P. on 23 March, 2023
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad (Lucknow) ********** Reserved on: 01.03.2023 Delivered on: 23.03.2023 Reserved Case :- CRIMINAL MISC. BAIL APPLICATION No. - 736 of 2021 Applicant :- Jagannath Yadav Second Bail Opposite Party :- State of U.P. Counsel for Applicant :- Brijesh Kumar Yadav,Rakesh Kumar Chaudhary,Shaunak Singh,Sudhir Kumar,Suhail Kashif Counsel for Opposite Party :- G.A.,Ramakar Shukla,Shachindra Pratap Singh Hon'ble Rajan Roy,J.
Heard Sri Rakesh Kumar Chaudhary, Sri Sudhir Kumar and Sri Suhail Kashif, learned counsels for the applicant and Sri P.K. Mishra, learned A.G.A. and Sri S.P. Singh, learned counsel for the informant.
The applicant is in jail since 17.07.2019 in connection with Session Trial No.371 of 2019 under Sections-147, 148, 149, 302, 307, 324, 504 & 34 I.P.C., P.S.-Gosaiganj, District-Sultanpur.
This is second bail application of the applicant-Jagannath Yadav. The first bail application bearing Bail No.12634 of 2019 had been rejected on 30.05.2020 in the following terms:-
"Heard learned counsel for the applicant seeking bail and Shri Prachish Pandey, learned A.G.A.-I for the State through video conferencing in view of the Covid 19 lockdown on a mention being made by the learned counsel for the applicant.
The instant bail application has been filed by the accused/applicant Sri Jagannath Yadav S/o Sri Ram Piyaare Yadav involved in case crime no. 419/2019, under Sections 147,148,149,307,302,324,504,506,34,120-B IPC, Police Station- Gosainganj, District- Sultanpur.
Contention of Sri Jyotindra Mishra, learned Senior Counsel appearing for the applicant assisted by Sri Kapil Mishra is that the applicant has been assigned role of using Farsa, however, in the postmortem report there are no incise woulds. Only general role has been assigned. Moreover he says that the incident is alleged to be of 2.7.2019, but the F.I.R. was lodged on the next date i.e. 3.7.2019. As regards the informant's statement, in the first statement recorded on 3.7.2019 he did not allege the use of lathi, instead he alleged use of Farsa, but subsequently in his 'Mazeed Bayan' he changed the story to contend that after the Farsa was disloged from the stick appended to it, it is the lathi or stick which was used. He also says that there are cross cases. There are two injured on his side also.
Sri Prachish Pandey, learned A.G.A. submitted that the cross case on behalf of the applicant and others was lodged on an application under section 156(3) Cr.P.C. He says that there are eye witnesses who have specifically assigned the role of using lathi to the applicant Jagannath Yadav after Farsa used by him earlier got stuck in the earth. He has also invited attention of the Court to Annexure CA-7 to contend that the applicant has eight criminal cases against him i.e. he has a criminal record, although he also says that in some of the criminal cases have been attempted to be explained by the applicant. He also says that till date eye witnesses have not been examined, though chargesheet has been filed. The antemortem injuries mentioned in the postmortem report are relatable to the lathi used by the accused Jagannath Yadav.
Sri Anil Kumar Tripathi, learned counsel for the complainant has also vehemently opposed the application of the applicant for being enlarged on bail.
Without making any observations on the merits of the allegations truth of which would be seen during trial, considering the facts of the case as noticed hereinabove, specially the criminal record of the applicant and other relevant factors mentioned in the arguments of the learned counsel appearing for the State and the complainant as also the fact that witnesses have not been examined before the Trial Court as yet, as such the likelihood of the trial being influenced adversely, if the applicant is enlarged on bail cannot be ruled out, therefore, this Court is of the view that the applicant is not entitled to be enlarged on bail. The bail application is rejected. "
The contention of the applicant's counsel is that out of seven accused, six have been enlarged on bail on various dates i.e. on 19.09.2022, 23.11.2022 and 14.12.2022. They have been enlarged on bail subsequent to rejection of the applicant's bail application on 30.05.2020. Therefore, he is entitled to be granted bail on the ground of parity. In this context, he submitted on a query being put to him as to whether the other accused had criminal history, he submitted that they had. He also submitted that, in fact, Rajjan Yadav had been assigned the role of firing but he has also been enlarged on bail. It is also his submission that the applicant is 65 years old and underwent a bypass surgery in 2017.
Apart from the above, no other new ground was argued by the applicant's counsel before the Court.
Learned A.G.A. on the other hand submitted that brutal murder was committed by the applicant along with other co-accused. It is a case of direct evidence and eye-witnesses have seen the applicant committing the crime. He has been assigned the main role. Moreover, he had criminal history of twelve cases against him and committed the crime while he was on bail in some of criminal cases which further enhances the gravity of the crime apart from the brutality with which it was committed. He submitted that there were six eye-witnesses to the crime out of which only two or three have been examined as yet. In these circumstances, if the applicant is enlarged on bail then he is bound to influence the trial and the witnesses, considering his criminal record. The murder was committed on account of prior enmity of the deceased with the applicant-Jaganath Yadav. He also submitted that subsequent to commission of the crime, F.I.R. and chargesheet have also been filed against the applicant under the Gangsters Act as also against other accuseed.
Sri Shachindra Pratap Singh, learned counsel for the Informant submitted that not only the crime committed was brutal but it was committed by the applicant along with other accused when the applicant was on bail in other criminal cases. Considering the criminal history of the applicant, if he is enlarged on bail then he is bound to influence the witnesses and the trial. His enlargement on bail would endanger the life of the witnesses. He also submitted that bail rejection order dated 30.05.2020 rejecting the applicant's bail application was not placed before the Co-ordinate Bench which allowed the bail application of the co-accused. He says that corrects facts were not placed before the Co-ordinate Bench nor the criminal history was brought to its notice in some of the cases. Therefore, no parity should be given to the applicant, especially considering his criminal history of twelve cases. He submitted that it was a daylight brutal murder and there are two injured witnesses who have supported the prosecution case.
In response, learned counsel for the applicant submitted that out of the twelve criminal cases which the applicant has disclosed in his bail application, only three are pending and he is on bail in all the three cases. He reiterated that the co-accused having been enlarged on bail, he is also entitled to be enlarged on bail.
As this is second bail application, therefore, this Court has to consider the new grounds which have been raised before it. Trial against the applicant and the other accused is still pending and as stated by the applicant's counsel, P.W.1, P.W.2 and P.W.3 alone have been examined as yet. There are at least three eye-witnesses yet to be examined by the trial court. P.W.2 and P.W.3 are injured eye-witnesses. P.W.1 is the Informant. Testimony of P.W.2-Saurabh Mishra has been completed on 10.11.2022 whereas the testimony of P.W.3-Durgesh Pandey has been completed on 04.02.2023. P.W.1's testimony was completed on 28.06.2022. Prosecution witnesses who have been examined till date have supported the prosecution case and also the role of the applicant with regard to commission of the crime as informed by learned A.G.A. for the State. Post-mortem reveals that there are as many as sixteen injuries on the body of the deceased and a metallic shadow was also seen in the X-ray below mandible artifact. It was a brutal murder as is evident from the injuries. There are twenty witnesses in the case.
The applicant had twelve criminal cases against him but has explained the same in paragraph-32 of the application. Even after the said explanation, at least three cases i.e. Case Crime No.557/2012, under Section-147, 148, 149, 504, 506 I.P.C.; Case Crime No.365/2019 under Section-147, 323, 504, 506 I.P.C. and Case Crime No.214/2014, under Section-147, 148, 149, 323, 504, 506, 308 I.P.C. are pending. Though, Section 307 I.P.C. is not mentioned in respect of the said Case Crime No.557 of 2012 in para no.32 of the application, in the rejoinder affidavit, in paragraph-20(v), the said section is also mentioned. As regards, Case Crime No.216/2018 under Section-147, 148, 149, 302, 307, 324, 504, 506 & 34 I.P.C., P.S-Gosaiganj, District-Sultanpur, the applicant has stated that chargesheet has not been filed against him, however, it is not very clear as to whether investigation is still pending against him. With regard to other criminal cases such as Case Crime No.216/18; Case Crime No.504/2015, Case Crime No.486/2014, Case Crime No.533 of 2012, Case Crime No.765 of 2009, Case Crime No.-169A/2001, all relating to P.S.-Gosaiganj, District-Sultanpur, it has been stated that final report has been submitted in favour of the applicant but it is not very clear as to whether final report has been accepted. Nevertheless, even it, these cases are ignored, there are at least three cases pending wherein chargesheet has been filed against the applicant though he is on bail.
The Court has perused the bail order of Rajjan Yadav passed in Criminal Misc. Bail Application No.12410 of 2021 and is dated 19.09.2022. The Court does not find any consideration of criminal history of the said applicant in the bail order, though, it is cursorily mentioned in para no.4 of the said order while recording the arguments of the applicant that the same have been explained. Learned A.G.A. based on the records of the said bail application has informed the Court that Rajjan Yadav had three criminal cases against him but there is no consideration of the same in paragraph nos.6 & 7 of the said bail order. The only reasoning given in the bail order is that the said applicant is in jail for more than three years. In this case, the applicant has as many as twelve criminal cases against him. Therefore, considering the criminal history of the applicant herein, this Court is not inclined to grant parity of Rajjan Yadav to the applicant herein. It is the own case of the applicant that in the aforesaid three criminal cases he was on bail prior to commission of crime in this case on 02.07.2019, meaning thereby, he is alleged to have committed the crime while he had been enlarged on bail by the Courts in the earlier cases. Therefore, this is a relevant factor which has to be kept in mind. Moreover, merely because, the applicant is in jail since 17.07.2019 cannot be a ground for enlarging him on bail in the facts and circumstances of this case considering his criminal history and the aforesaid fact of commission of crime while on bail, especially as, out of the six eye-witnesses, only three have been examined as yet and they have supported the prosecution case and the offence carries a minimum sentence of imprisonment for life.
Before considering the bail orders passed in the case of other six co-accused, the Court takes note of the fact that bail application of the applicant herein was rejected on 30.05.2020 but this order was not placed before the Co-ordinate Bench which has passed bail orders in the case of the co-accused as there is no reference to it in the bail orders. In this context, it is worthwhile to mention that two of the co-accused, namely, Sunil Yadav and Surendra Yadav are the sons of the applicant herein-Jagganath Yadav, therefore, they were aware of rejection of bail application of their father. Thus, the bail orders of the co-accused have been passed in ignorance of rejection of bail application of the applicant herein or if they were on record, have not been considered by the Co-ordinate Bench.
On a perusal of bail order dated 19.09.2022 passed in Criminal Misc. Bail Application No.10429 of 2020 in the case of co-accused-Sanjay Pandey, there is no mention of any criminal history in the said bail order. Therefore, if the said person did not have any criminal history as it is not mentioned in the bail order, parity of the said order cannot be extended to the applicant herein, considering his criminal history.
On a perusal of bail order dated 19.09.2022 passed in Criminal Misc. Bail Application No.8371 of 2020 filed by co-accused-Sunil Yadav and son of the applicant, I find that in para no.4 of the said order there a reference of three criminal cases against the said applicant and also that the investigating agencies had not found any evidence for commission of the offence and closure/ final report had been filed under Section-173(2) Cr.P.C. in the said cases. This was the statement of his counsel which has been recorded by the Court. In view of this, as in the applicant's case, there are criminal cases pending against him, no parity can be granted to him with his son-Sunil Yadav.
On a perusal of bail order dated 19.09.2022 passed in Criminal Misc. Bail Application No.8849 of 2021 filed by co-accused Surendra Yadav-the other son of the applicant though the counsel for the respondent mentioned criminal antecedents of the Surendra Yadav which is recorded in para no.5 of the order but there is no consideration of this criminal history in para no.6 and 7 wherein the only reason given is that they are in jail since more than three years and trial is pending.
Likewise, on a perusal of the order dated 23.11.2022 passed in Criminal Misc. Bail Application No.3311 of 2022 filed by co-accused Shrikant Pandey Alias Vikki, the said person was granted bail only on the ground of parity as other co-accused had been granted bail and there is no mention of criminal history of Shrikant Pandey in the said order. Learned A.G.A. has informed that Srikant Pandey has criminal history of one case i.e. Case Crime No.557/2012, P.S.-Gosaiganj, District-Sultanpur. Therefore, parity cannot be granted to the applicant with Srikant Pandey.
On a perusal of the bail order dated 14.12.2022 passed in Criminal Misc. Bail Application No.9775 of 2022 filed by Rajesh Pandey Alias Kallu, the Court finds that he was granted bail only on the ground of parity with other co-accused. He does not have any criminal history whereas the applicant herein has criminal history and three cases other than the case at hand are pending against him. Therefore, parity cannot be granted with Rajesh Pandey.
In view of the above discussion, the new ground raised herein that is of parity with the bail granted to six other co-accused does not find favour with this Court. Considering the criminal history of the applicant and considering the fact that some of the eye-witnesses to the crime are yet to be examined, the applicant is not entitled to be enlarged on bail as the possibility of the eye-witnesses being influenced and trial being affected cannot be ruled out. Moreover, it is submitted by learned counsel for the opposite parties that it is the applicant who had motive for the murder i.e. prior enmity with the deceased.
The fact that the deceased also has a criminal history of few cases as was asserted by the applicant's counsel is inconsequential in these circumstances, especially considering the facts of the case.
As regards the other ground raised by the applicant's counsel that the applicant is 65 years old and had undergone bypass surgery in 2017, the crime alleged in the case at hand was committed on 02.07.2019 i.e. after the alleged bypass surgery, the applicant's health can be taken care of by the doctors of the jail where he is lodged and if he has any grievance in this regard, he can move the court below. There are no such documents on record to show that he is seriously ill as of now, therefore, this contention also does not cut ice with the Court.
The fact that the crime is alleged to have been committed while the applicant had been enlarged on bail by the court in other criminal cases also disentitles him to bail in addition to the reasons already mentioned hereinabove.
In view of the above discussion, the second application for enlarging the applicant on bail is rejected. It shall, however, be open for the applicant to apply for bail afresh after the witnesses of fact have been examined.
(Rajan Roy,J.) Order Date :- 23.03.2023 Shanu/-