Chandra Bhan Yadav @ Baba Yadav vs The State Of U.P.
2017 Latest Caselaw 5845 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 51
 

 
Case :- CRIMINAL APPEAL No. - 4599 of 2014
 

 
Appellant :- Chandra Bhan Yadav @ Baba Yadav
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Munna Pandey,Dileep Kumar,Lav Srivastava,Mangala Prasad Rai,Rajrshi Gupta
 
Counsel for Respondent :- Govt.Advocate,Anand Kumar Singh,Pradeep Kumar Rai
 

 
Hon'ble Vipin Sinha,J.

Hon'ble J.J. Munir,J.

(Delivered by Hon'ble J.J. Munir, J.)

The sole appellant Chandra Bhan Yadav @ Baba Yadav in the instant appeal has prayed for bail pending appeal.

The appeal is directed against a judgment and order dated 30.10.2014 passed by Sessions Judge, Allahabad in S.T. No. 116/2010 (State vs. Chandra Bhan Yadav @ Baba Yadav and others), under Sections 302/34, 120B IPC and Section 7 of Criminal Law Amendment Act, whereby the appellant has been convicted for the offence punishable under Section 302/34 IPC and sentenced to life imprisonment with fine in the sum of Rs. 50,000/-, in default of payment of which one year additional R.I. has been ordered. The appellant has also been convicted for the offence under Section 7 of Criminal Law Amendment Act and sentenced to suffer 6 months R.I. All sentences have been directed to run concurrently. In addition, the appellant also assails his conviction by the same impugned judgment dated 30.10.2014 in S.T. No. 114 of 2010, State vs. Chandra Bhan Yadav @ Baba Yadav, under Section 25 of Arms Act, where he has been sentenced to suffer one year rigorous imprisonment and ordered to pay a fine of Rs. 2,000/- with a default sentence of one month additional rigorous imprisonment. Here also the sentences have been directed to run concurrently.

Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Lav Srivastava, learned counsel for the appellant, Sri Kamal Krishna, learned Senior Advocate for the complainant and learned AGA for the State.

Sri Srivastava, learned Senior Counsel appearing for the appellant has argued that the incident is one that is said to have occurred on 30.06.2008 at 4 P.M, wherein applicant-appellant is alleged to have shot Dharmendra Singh Yadav, brother of the first informant in front of the house of one Jagdish Narayan Yadav at the partys' native village Rahimapur Bazar, P.S. Jhunsi, District Allahabad. The crime aforesaid is said to have been committed as per the first information by the applicant-appellant along with Rajesh, Gyan Chandra Yadav @ Vakil and another unknown assailant, all of whom had appeared at the scene riding motorcycles numbering two with pistols in their hands. They are said to have resorted to indiscriminate firing killing Dharmendra Singh Yadav.

The learned Senior Advocate has urged that four persons are alleged to have fired whereas the deceased has suffered only two gun shot injuries. It is his submission, therefore, that it cannot be said as to who fired the fatal shot. Learned counsel has urged that appeal has reasonable prospects of being allowed at the hearing. The applicant is in jail for the past 8 years. He is aged about 70 years and keeps poor health. The appeal is not likely to be heard in the near future. In view of the aforesaid facts in totality Sri Srivastava, learned Senior Advocate contends that it is a fit case where the applicant-appellant be restored to his liberty by way of bail pending appeal.

In a scathing opposition to the bail plea, Sri Kamal Krishna, learned Senior Advocate appearing for the complainant, who has been joined in his submission by the learned Additional Government Advocate for the State, have urged that this crime has a desperate background and shows that the applicant has scant record for the law. This case is urged on the foot of facts that the elder brother of the deceased in the present case, Yogendra Pratap Singh was murdered earlier by the applicant and his sons Raj Kumar and Santosh Kumar due to enmity harboured as a result of differing political allegiance shown during preceding elections of that time. Sri Chandra Bhan Yadav was out on bail pending trial in the case where he was accused, at that time of murdering Yogendra Pratap Singh, the elder brother of the deceased in the present case Dharmendra Singh Yadav. In that case, the deceased in the present case Dharmendra Singh Yadav was prosecuting the matter against the applicant in Court. The instant crime was committed by the applicant while he was out on bail pending trial in the case relating to the murder of Yogendra Pratap Singh. It is, thus, the submission of learned counsel for the complainant Sri Kamal Krishna, Senior Advocate that the applicant-appellant is a determined and desperate offender who has misused his liberty of bail and eliminated the younger brother of his earlier victim Yogendra Pratap Singh, who was pursuing that case against the applicant. Learned Senior Advocate for the complainant has further placed before us at the bar an order of this Court dated 09.04.2013 passed in Criminal Appeal No. 6261/2010, Chandra Bhan Yadav @ Baba Yadav and others vs. State and others, to show that in the case where the applicant was earlier an under trial for the offence of murder of Yogendra Pratap Singh, elder brother of the deceased in the present case, he has been convicted by the learned Sessions Judge vide S.T. Nos. 177/2007 and 302/2007, under Sections 302/34 IPC, 7 Criminal Law Amendment Act and Section 25 of Arms Act, P.S. Jhunsi, District Allahabad and has been subsequently enlarged on bail pending appeal. Thus, the learned Senior Counsel has urged that complicity of the applicant in the murder of the elder brother of the deceased in the present case stands confirmed as he now stands convicted in that case and is in appeal against that judgment before this Court.

We have given our thoughtful consideration to the rival contention of the parties as very ably put forth on both sides.

To our mind what is not in issue is the fact that the applicant was out on bail pending trial in the case related to the murder of elder brother of the deceased in the present case when he is said to have done the younger brother Dharmendra Singh Yadav to death. It is also quite natural and is also the case urged on behalf of the complainant and the State that it was Dharmendra Singh Yadav who was prosecuting the case of his brother's murder against the applicant in his right as the complainant. It is also true that the charge of murdering of the elder brother of the deceased Dharmendra Singh Yadav, victim in the present case stands vindicated by his conviction by the learned Sessions Judge, which at the moment stands subject to the out come of his appeal against the conviction.

No doubt, in cases where an appeal from conviction is not likely to be heard in the near future and the accused has spent substantial time in jail there is high authority of the Supreme Court to favour bail pending appeal to the convict. It is so held in the cases of Hussain and Another vs. Union of India reported in 2017 (5) SCC 702, Sandeep alias Raja Acharya vs. State of Orissa reported in AIR 2017 SC 1568, Akhtari Bi vs. State of U.P. reported in AIR 2001 SC 1528, Kushal Singh vs. State of U.P. passed in special leave to appeal (Crl.) No. 2356/2010, Smt. Akhtari Bi vs. State of M.P. reported in JT 2001 (4) SC 40 and Kashmira Singh vs. The State of Punjab reported in AIR 1977 SC 2147. At the same time it is equally true that the mere fact of long detention in jail with no prospects of appeal being heard in the near future cannot be followed as a thumb rule to grant bail pending appeal in every case bereft of reference to factors like the nature of the allegations against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and the desirability of releasing the accused on bail after conviction for the serious offence of murder. The aforesaid view of law has been expressed by the Supreme Court in Vijay Kumar vs. Narendra and others, 2002 (9) SCC 364. Para-10 of the reports reads as under:

"10. On perusal of the record and on consideration of the submissions made by the learned counsel appearing for the parties, we are of the view that in the context of the facts and circumstances of the case, the High Court was in error in passing the order releasing the respondents on bail. The High Court has neither given any reason nor has indicated any exceptional circumstance for granting bail to the respondents. In the above circumstances, it is difficult for us to even surmise the circumstance which prompted the learned single judge to consider the accused persons to be entitled to the discretionary relief of bail pending the appeal.

The principle is well-settled that in considering the prayer for bail in a case involving serious offence like murder, punishable under Section 302 IPC, the court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. Our attention has not been drawn to any material, which would show that the learned single judge took into consideration the relevant factors while passing the bail order. We refrain ourselves from making any observation touching on merits of the case lest it may prejudice any of the parties. Suffice it to state that we do not consider this a fit case for grant of bail to the respondents during pendency of the appeal filed by them." (Emphasis by us)

Also, their Lordship of the Supreme Court have expressed their strong disapproval to bail pending appeal to such persons who commit a heinous offence like murder misusing the liberty of bail in an earlier case. The disapproval to the grant of liberty of bail to a person who is already on bail and misutilizing his liberty to commits a heinous offence like murder finds the closest expression on facts in the decision of the Supreme Court in Ramesh Kumar Singh vs. Jhabbar Singh and others, 2004 SCC (Cri) 1067, where in paragraph 2 of the report it is held:

"2. This case exhibits the callousness on the part of the High Court in the matter of granting bail. The respondent having been tried for committing an offence under Section 302 IPC was convicted and sentenced to imprisonment for life in the year 1984. It was found that he had killed the father of the complainant. Against his conviction and sentence he preferred an appeal and while the appeal was pending before the High Court, the High Court was persuaded to release him on bail. While on bail, he committed the present offence of murdering two brothers of the complainant on 03.09.1996. This case ended in conviction of the respondent by judgment dated 06.12.1999 and he has been convicted under Section 302 IPC and sentenced to imprisonment for life. Against his conviction he carried the matter in appeal to the High Court and while the appeal is pending, the High Court released him on bail by the impugned order dated 05.05.2000, on the ground that the co-accused have been released on bail. It is stated to us that the bail granted to the co-accused has been cancelled in the meantime by this Court. Even without that, an accused who had misutilized the liberty that was granted to him earlier by committing murder while on bail, was not entitled to the privilege of being released on bail. The impugned order granting bail is set aside and we direct the accused be arrested and taken into custody forthwith. The appeal stands disposed of accordingly." (Emphasis by us)

Looking to the facts of the case in hand we find that applicant is a person who has eliminated the elder brother of the deceased in the present case, to wit, Yogendra Pratap Singh, and, while he was out on bail in that case he has done to death the deceased in the present case, Dharmendra Singh Yadav as he was prosecuting the case relating to the death of his elder brother against the applicant. These facts go to show that the applicant is a desperado who without fear of the law is ready to eliminate any person whom he may perceive as a threat to him, even as a witness or a complainant in a criminal case in a court of law. In our considered opinion the nature of the offence committed by the applicant, which is the murder of the brother of the earlier victim by no standards would entitle the applicant to the liberty of bail pending appeal. Particularly so, as the murder of the deceased in the present case of which he now stands convicted was committed while he was enjoying the concession of bail pending trial in the case of the murder of the elder brother of the deceased in the present case.

The bail application is accordingly rejected.

A perusal of the office report dated 23.07.2015/08.02.2017 shows that lower court record has been received in the office. Accordingly, we consider it proper in the exercise of our power under Chapter-VIII Rule 33A of the Rules of Court to order that hearing of this appeal be expedited, particularly looking to the age of the appellant.

Let the office prepare requisite paper books within two months next.

The appeal be posted for hearing before the appropriate Bench immediately after two months.

Order Date :- 27.10.2017

Imroz