Brijesh Kumar @ Deepu Ojha And Anr vs State Of U.P
2022 Latest Caselaw 2248 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
High Court of Judicature at Allahabad
 
(Lucknow)
 
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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3643 of 2018 
 
Applicant :- Brijesh Kumar @ Deepu Ojha And Anr 
 
Opposite Party :- State Of U.P 
 
Counsel for Applicant :- S.M. Singh Royekwar, Ajmal Khan, Prem Prakash Singh, Ravindra Kumar Verma 
 
Counsel for Opposite Party :- G.A.,Ashok Kumar Srivastava 
 

 
Hon'ble Rajesh Singh Chauhan, J.

Heard Mr. Ajmal Khan, learned counsel for the applicants, Mr. Rupendra Kumar Singh, learned Additional Government Advocate appearing on behalf of the State and Mr. Ashok Kumar Srivastava, learned counsel for the complainant/informant.

As per Mr. Khan the present applicants are in jail since 09.06.2017, in Case Crime No.302 of 2016, under Sections 147, 148, 149, 302, 307, 404, 120-B and 34 I.P.C. Police Station-Baaghrai, District-Pratapgarh. Learned counsel for the applicants has submitted that the present applicants have been falsely implicated in the case as they have not committed any offence as alleged.

As per the prosecution case, in the mid night of 11.12.2016, the complainant along with his brother Rajesh Singh, Dheeraj Singh, Sonu Singh, Poonam Singh, wife of Rajesh Singh, Harshvardhan Singh son of Rajesh Singh were returning to his home after attending an invitation in Tiwari Mahamadpur. When they reached at Kamsin Tiraha then the accused persons armed with fire arms and bombs attacked on them. It is further mentioned in the first information report that due to the firing Rajesh Singh died on spot and Dheeraj Singh and Sonu Singh received grievous injuries. It is also alleged in the first information report that during commission of crime the accused persons also looted a licensed pistol and cash of Rs.1,50,000/- and some papers of the deceased.

Learned counsel for the applicants has submitted that on the complaint submitted by informant/complainant as many as 18 persons including the present applicant have been arrested.

Learned counsel for the applicants has submitted that an unexplained delay of more than 14 hours in lodging of first information report renders the prosecution story wholly unreliable particularly when the informant alleges himself to be eye witness.

It is also submitted that the whole prosecution story is an afterthought, impromovements and embellishments as the informant in a very well planned manner after giving a deep thought has concocted the story and arrayed 18 persons as accused in the case including the present applicants. The alleged eye witnesses namely Dheeraj Singh and Sonu Singh, who were accompanying the deceased, have denied to have identified any of the alleged assailants. It is also submitted on behalf of the applicants that statement under Section 161 Cr.P.C. of Poonam Singh, who is alleged to be an eye witness of the occurrence has been recorded after more than four months of the alleged incident, without giving any reason for such delay and therefore the statement lacks its credibility. It is also submitted that the informant being brother of the deceased and Poonam Singh being the wife of the deceased, as such, their statements cannot be relied upon as they are itnterested witnesses. It is also submitted that there were more than 50 cases of criminal history pending against the deceased Rajesh Singh and there being a lot enemies of the deceased, therefore, there are great probabilities that the alleged incident might be a result of any such enmity.

Learned counsel for the applicants has submitted that this Court has granted bail to the co-accused Santosh Vaish in Bail No.7415 of 2017 and Rohit Singh in Bail No.8679 of 2017 vide order dated 5.2.2018. The complainant/informant has challenged the bail order of co-accused Rohit Singh before Hon'ble Apex Court by filing Special Leave to Appeal (Criminal) No.5018 of 2018 contending that the said accused while on bail in the present case has committed two more serious offences. Therefore, the Hon'ble Apex Court has observed vide order dated 6.9.2019 that the Investigating Officer should immediately move for cancellation of bail against the said accused before the High Court and if such application is filed, same shall be decided on merits.

Pursuant to the aforesaid direction of the Hon'ble Apex Court the application for cancellation of bail was filed before this Court bearing Bail No.9677 of 2019 and this Court vide order dated 27.01.2020 cancelled the bail of co-accused Rohit Singh.

Learned counsel for the applicants further submitted that the bail of co-accused Santosh Vaish was not assailed and such order is still maintained. He has further submitted that this Court has also granted bail to other co-accused persons namely Pankaj Pasi @ Pankaj Saroj in Bail No.1030 of 2018 vide order dated 9.2.2018 and to Jwala Singh @ Kuldeep Singh in Bail No.973 of 2018 vide order dated 8.2.2018. One more co-accused Pramod Kumar Singh has been granted bail vide order dated 16.2.2018, passed in Bail No.1169 of 2018, however, an application for cancellation of his bail is pending consideration. It has also been informed that this Court vide recent order dated 8.4.2022 rejected the bail application of one of the co-accsued Sunil Kumar Gupta @ Bachcha in Criminal Misc. Bail Application No.10805 of 2019, vide order dated 4.1.2022.

To summarize, learned counsel for the applicants has submitted that the bail orders of the co-accused Santosh Vaish, Pakka Pasi @ Pankaj Saroj, Jwala Singh @ Kuldeep Singh are still intact, whereas the bail of Rohit Singh, Sunil Kumar Gupta @ Bachcha has been cancelled. He has further submitted that there may not be any parity in rejection of the bail order as the parity is considered for the bail orders granted in favour of the co-accused persons.

Therefore, on the basis of the aforesaid facts and considering the period of incarceration of the present applicants, they may be released on bail giving parity with the aforesaid co-accused persons who have been enlarged on bail by this Court. He has also submitted that there is no possibility to conclude the trial in near future, therefore, the present applicants may not be compelled for pre-trial detention as the same shall be violative of Article 21 of the Constitution of India.

Learned A.G.A. as well as Mr. Ashok Kumar Srivastava, learned counsel for the complainant/informant have vehemently opposed the aforesaid bail application.

Mr. Srivastava has submitted that the applicant no.1 is having a criminal history of as many as eight cases and applicant no.2 has a criminal history of five cases as indicated in paragraph no.19 of the counter affidavit of complainant/informant, but in the bail application the applicants have not disclosed this fact. Therefore, since the present applicants have not come with clean hands before this Court so they are not entitled for bail.

No rejoinder affidavit has been filed by learned counsel for the applicants replying the contents of the counter affidavit filed by the informant/complainant.

Mr. Srivastava, learned counsel for the informant has submitted that eye-witness has fully supported the prosecution version. He has drawn attention of this Court towards the statement of Manoj Kumar Singh informant/complainant and Smt. Poonam Singh wife of the deceased, wherein the name of the present applicants have been taken. Further, the injured witnesses namely Sonu Singh and Dheeraj Singh also supported the prosecution case. He has also submitted that in similar circumstances the bail of co-accused Sunil Kumar Gupta @ Bachcha (Criminal Misc. Bail Application No.10805 of 2019) has been cancelled by this Court and said co-accused was having similar role as the present applicants, therefore, the bail application of the present applicants may be rejected.

Mr. Srivastava, learned counsel for the complainant has placed reliance on the dictum of Hon'ble Apex Court in the case of Ramesh Bhavan Rathod Vs. Vishanbhai Hirabhai Makwana Makwana (Koli) and another; reported in AIR 2021 SC 2011 to contend that while considering the bail application of the accused, particularly considering the principle of parity, the gravity of the offence, nature of offence and general conduct of the accused should be perused carefully.

He has also drawn attention of this Court towards decision rendered by Hon'ble Apex Court dated 1.4.2022 in the case of Rishipal @ Rishipal Singh Solanki Vs. Raju and another; Criminal Appeal No.541 of 2022 arising out of Special Leave Petition (Criminal) No.1743 of 2022 to contend that when the bail application of the co-accused is dismissed, factors which led to such dismissal must be considered while deciding the bail application of the other co-accused persons.

I have considered the submissions of learned counsel for parties and perused the material available on record.

At the very outset, I must observe that in the bail application the present applicants have not explained their criminal history. The applicant no.1 i.e. Brijesh Kumar @ Deepu Ojha is having a criminal history of eight cases, details of which are as under:

"1. Case Crime No. 209 of 2015, under sections 147, 504, 506, 379, 427 IPC and 3 (1)(X) SC/ST Act, Police Station- Baghrai, District- Pratapgarh.

2. Case Crime No. 21 of 2016, under sections 452, 323, 504, 506 IPC, Police Station- Baghrai, District- Pratapgarh.

3. Case Crime No. 153 of 2016, under sections 110 Cr.P.C. Police Station-Baghrai, District- Pratapgarh.

4. Case Crime No. 246 of 2016, under sections 323, 504, 506 IPC and 3 (1)(X) SC/ST Act, Police Station- Baghrai, District Pratapgarh.

5. N.C.R. No. 106 of 2016, under sections 323, 504, 506 IPC, Police Station-Baghrai, District- Pratapgarh.

6. N.C.R. No. 107 of 2016, under sections 323, 504, 506 IPC, Police Station-Baghrai, District- Pratapgarh.

7. Case Crime No. 302 of 2016, under sections 147, 148, 149, 302, 307, 404, 120-B, 34 IPC, Police Station- Baghrai, District-Pratapgarh. (This is the present case).

8. Case Crime No. 85 of 2017, under sections 3/25 Arms Act, Police Station- Kotwali, District- Allahabad."

Similarly, the applicant no.2 namely Vivek @ Deepak Ojha is having criminal history of five cases, details of which are as under:

"1. Case Crime No. 152 of 2016, under sections 110 Cr.P.C. Police Station-Baghrai, District- Pratapgarh.

2. N.C.R. No. 106 of 2016, under sections 323, 504, 506 IPC, Police Station-Baghrai, District- Pratapgarh.

3. N.C.R. No. 107 of 2016, under sections 323, 504, 506 IPC, Police Station-Baghrai, District- Pratapgarh.

4. Case Crime No. 302 of 2016, under sections 147, 148, 149, 302, 307, 404, 120-B, 34 IPC, Police Station- Baghrai, District Pratapgarh. (This is the present case).

5. Case Crime No. 84 of 2017, under sections 3/25 Arms Act, Police Station- Kotwali, District- Allahabad."

Therefore, it is clear that after getting bail in first criminal case the present applicants have committed several offences, so it would be appropriate to observe here that they have misused the liberty of bail granted by the competent court of law.

When any accused person is released on bail in his/her first criminal case, he/she gives his/her undertaking before the competent court concerned that he/she shall not misuse the liberty of bail. During period of bail if he/she again commits any offence and was arrested, he/she files the next bail application in such crime case making specific and categorical submission and undertaking that he/she shall not misuse the liberty of bail then, the competent court considering the aforesaid undertaking grants bail. Again during the period of bail such accused person commits another offence and obtains bail, it would mean that he/she has got no respect towards the order of the Court whereby he/she has been granted bail and at the same time he/she does not care about his/her undertaking that he/she shall not misuse the liberty of bail.

In nutshell, the repeated offender who repeats any crime while he/she is on bail in earlier case/cases should not be granted bail as he/she may again misuse the liberty of bail, therefore instead of granting bail, to me, the direction to expedite the trial should be issued.

The Hon'ble Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 has observed that 'the bail is a right and denial is an exception' but it does not mean that the bail should be granted in every case. Further, at the time of considering the bail application of an accused it is also necessary for the Judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct.

The Hon'ble Apex Court in a recent judgment of Ramesh Bhavan Rathod (supra) has observed in paragraphs 22 and 32 as under:

"22. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav Vs. State of U.P. MANU/SC/1208/2014 : (2014) 16 SCC 508, this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed:

'17. Coming to the case at hand, it is found that when a stand was taken that the 2nd Respondent was a history sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd Respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the 2nd Respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.'

32. Our analysis above would therefore lead to the conclusion that there has been a manifest failure of the High Court to advert to material circumstances, especially the narration of the incident as it appears in the cross FIR which was lodged on 13 May 2020. Above all, the High Court has completely ignored the gravity and seriousness of the offence which resulted in five homicidal deaths. This is clearly a case where the orders passed by the High Court suffered from a clear perversity."

(emphasis supplied)

Notably, the bail of the co-accused Sunil Kumar Gupta @ Bachcha in Criminal Misc. Bail Application No.10805 of 2019 has been rejected by this Court vide order dated 4.1.2022 considering the gravity of offence and the statement of eye witnesses and the injured persons.

Besides, the bail of another co-accused Rohit Singh has been cancelled by this Court pursuant to the directions of Hon'ble Apex Court considering the gravity of the offence, statements of eye witnesses and the injured persons as well as the fact that such co-accused persons have misused the liberty of bail granted by this Court.

Therefore, without entering into the merits of the issue and going through the material available on record, the statements of eye witnesses and injured persons recorded under Section 161 Cr.P.C., checkered criminal history of the present applicants, I do not find any good ground to grant bail to the present applicants as no case for bail is made out.

Accordingly, bail application is rejected.

Further, I am not convinced to grant parity to the present applicants with those co-accused persons who have been granted bail by this court inasmuch as the present applicants have not explained their criminal history in the bail application and no reply has been given by them to the contents of the counter affidavit filed by the complainant/informant indicating the criminal history of the present applicants.

Before parting with, it is expected that the trial shall be concluded with expedition, say, within a period of one year. Further, the learned trial court may take all coercive measures,as per law, if either of the parties do not co-operate in the trial properly. The learned trial court shall fix short dates to ensure that trial is concluded within a period of nine months in terms of Section 309 Cr.P.C.

[Rajesh Singh Chauhan, J.]

Order Date :-07.05.2022

Ram.