Abhishek Kumar Singh @ Babu Singh vs State Of U.P.
2022 Latest Caselaw 1799 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 01.04.2022
 
   Delivered on 29.04.2022
 

 
Court No.- 28
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10821 of 2020 
 

 
Applicant :- Abhishek Kumar Singh @ Babu Singh 
 
Opposite Party :- State of U.P. 
 
Counsel for Applicant :- Rajendra Prasad Mishra,Arjun Singh Kalhans,Paresh Mishra,Raghvendra Pandey,Sunil Kumar Singh 
 
Counsel for Opposite Party :- G.A.,Sushil Kumar Singh 
 

 
Hon'ble Krishan Pahal,J.

1. Heard Sri Gopal Narayan Mishra, learned Senior Advocate assisted by Sri Raghvendra Pandey, Sri Arjun Singh and Sri Paresh Mishra, learned counsel for the applicant, Sri Sushil Kumar Singh, learned counsel for the first informant, learned A.G.A. for the state and perused the material available on record.

2. Applicant seeks bail in Case Crime No.737 of 2018, under Sections 147, 148, 149, 307, 504 IPC & Section 7 of Criminal Law Amendment Act, Police Station Gudamba, District Lucknow during the pendency of trial.

Facts in Brief:-

3. As per the allegations in the F.I.R., the first informant is stated to have reached in the Tilak Ceremony of his friend Bajrang Rajpoot on 07.12.2018 at about 9:00 pm. Thereafter, the applicant along with Pawan Singh (Lucky), Rohit Singh and Shivam Singh along with two three unknown persons also reached there by two different vehicles. On seeing the first informant, they started hurling abuses at him and his friends. On being protested by the first informant, the applicant and Rohit Singh challenged them and started firing at them. The gun shot fired by the applicant and Pawan Singh hit the leg of the first informant and the abdomen of Anoop Yadav. One gun shot injury was sustained by Kuldeep Yadav, who had tried to intervene. The applicant and co-accused persons are stated to have run away firing in air.

Rival Contentions:-

4. Learned counsel for the applicant has stated that the F.I.R. has been lodged after a delay of more than three and half hours. He has further stated that the applicant is in jail since 23.09.2020 and the trial is not proceeding any further as the offence has not even been committed. Learned counsel for the applicant has further stated that the statement of injured witness- Anoop Yadav has been recorded after a delay of about five months and there is no explanation of such delay in recording the statement of the injured person. He has further stated that the two statements recorded by the Investigating Officer of the first informant/injured are self contradictory. He has also stated that the injured- Anoop Yadav who is stated to have sustained a penetrating injury in abdomen was admitted at King George Medical University on 18.12.2018 and discharged the same day and the discharge summery states that patient was discharged under satisfactory condition. He has also submitted that Anoop Yadav was again admitted in the hospital on 09.06.2021 and discharged on 11.06.2021. Initial medical examination of the injured- Kuldeep Yadav was conducted at R.M.L. Hospital, Gomti Nagar, Lucknow, wherein the doctor is stated to have observed a lacerated would 1 x 1 cm on anterior aspect of Right Leg 5 cm above from Medial Mallecoties, Margin are inverted.

5. Learned counsel for the applicant has stated that the applicant has criminal history of twelve cases which has been explained. He has vehemently argued that the co-accused Rohit Singh has already been enlarged on bail in the present case vide order dated 10.06.2019 and the applicant is also entitled for bail. Learned counsel for the applicant has further stated that one Dinesh s/o Shatrudhan has also given an application to the S.O. of P.S. Gudamba, Lucknow stating a different version to the said occurrence which was not lodged by the police and after that, an application under Section 156(3) Cr.P.C. was filed in the court of Judicial Magistrate-II, Lucknow on 22.12.2018.

6. Learned counsel for the applicant has place much reliance on the judgment of this Court passed in Criminal Misc. Bail Application No. 13747 of 2021 (Gaurav @ Gaura vs. State of U.P.) decided on 05.01.2022, wherein the applicant had criminal history of forty eight cases and was granted bail.

7. Per contra, Sri Sushil Kumar Singh, learned counsel for the first informant and learned A.G.A. have vehemently opposed the bail application on the ground that although the patient was initially admitted at the hospital but he had to be treated again several times in the hospital and was admitted on 08.12.2018 and discharged on 18.12.2018 and was again admitted on 01.04.2019 and discharged on 10.04.2019. The patient is still undergoing treatment as he is not completely fit.

8. Learned counsel for the first informant has further stated that the injured person was firstly examined in the causality department of KGMU at 10:00 pm on 07.12.2018 and an entry would of 2 x 2 cm from fire arm was found on left side of his abdomen. He has further stated that at the time of arrest of the applicant, 9 mm pistol, three cartridges of 9 mm and one cartridge of 32 bore were recovered from the possession of the applicant. Learned counsel for the informant has further argued that the applicant is a gangster and a member of the gang of Muktar Ansari and he cannot be enlarged on bail in a routine matter as it will have an adverse affect upon the law and order situation. The applicant is likely to threaten the witnesses. Learned counsel for the first informant has further stated that though Article 21 of the Constitution grants liberty to the delinquent but it is important for the Courts to recognize the potential threat to the life and liberty of victims/witnesses also.

9. Learned counsel for the first informant has placed much reliance on the judgment of Supreme Court passed in case of Neeru Yadav vs. State of U.P. and Another1. Relevant part of the judgment is quoted hereinasunder:-

"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]."

10. Learned counsel for the first informant has also relied upon the judgment of this Court passed in Criminal Misc. Bail Cancellation Application No.38904 of 2016 (Smt. Pooja Pal vs. State of U.P. and 2 Others) decided on 31.05.2017, wherein the bail application of the accused was cancelled on the basis of his long criminal antecedents.

11. Learned counsel for the informant has stated that the applicant has a long criminal history of ten cases pertaining to Section 307 IPC only in various police stations in Lucknow, two cases are under Section 395 IPC, two cases under Section 384 IPC, seven cases under Sections 323, 504, 506 and 452 IPC and there are other cases under Arms Act, Goonda Act and Criminal Law Amendment Act. The applicant has a long criminal history of twenty two cases. Learned counsel for the first informant has further stated that in the statements of first informant, Subham Singh and that of injured Anoop Yadav, the applicant has categorically been assigned the role of firing and injuring Anoop Yadav in his abdomen. In all three persons, namely, Saurabh Singh, Anoop Yadav and Kuldeep Rajpoot, have sustained gun shot injury in the indiscriminate firing by the applicant and the co-assailants.

12. Learned counsel for the first informant has stated that there is nothing on record to suggest as to what happened to the said application filed under Section 156(3) Cr.P.C. The said application has been filed at the behest and pressure of the applicant to create his defence in the present case. It is hit be Section 300 Cr.P.C. The applicant does not deserves to be enlarged on bail in the present case.

Conclusion:-

13. In the said incident where there was ample light at the place of occurrence as there was a Tilak Ceremony going on, three persons are stated to have sustained gun shot injuries caused by the applicant and his co-assailants. The injury sustained by the injured Anoop Yadav is at vital part. The applicant has a long criminal history which indicates ten cases of attempt to murder.

14. It is settled law as opined by the Supreme Court in case of Ash Mohammad vs. Shiv Raj Singh2, Brij Nandan Jaiswal vs. Munna Jaiswal3, Anil Kumar Tulsiyani vs. State of U.P.4 and State of U.P. vs. Amarmani Tripathi5, wherein the Apex Court has opined that while granting bail to an accused, the Court should also take into consideration the criminal history of the accused. Criminal antecedents of an accused though always not determinative of question whether bail is to be granted or not, yet their relevance cannot be totally ignored. It has also opined in the aforesaid judgment that the concept of personal liberty of a person is not in realm of absolutism but is restricted one. It is true that if otherwise the case of bail is made out, the criminal antecedents cannot be a ground for rejection of bail, but herein otherwise also the case of bail is not made out, so the criminal history comes into play and cannot be ignored.

15. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, pending investigation and considering the complicity of accused, severity of punishment, at this stage, without commenting any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.

16. The bail application is, accordingly, rejected.

17. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order.

18. It is clarified that the observations made hereinabove are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

Order Date :- 29.04.2022

Ravi Kant