Sushil Kumar Tiwari vs State Of U.P.
2022 Latest Caselaw 15384 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                Reserved On:- 19.10.2022  
 
  Delivered On:- 01.11.2022  
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4093 of 2021 
 
Applicant :- Sushil Kumar Tiwari 
 
Opposite Party :- State of U.P. 
 
Counsel for Applicant :- Lal Mani Singh,Anil Kumar Pathak,Prashant Kumar Singh,Praveen Kumar Singh 
 
Counsel for Opposite Party :- G.A. 
 
Hon'ble Siddharth, J.

Order on Criminal Misc. Recall Application No. 09 of 2022

In

Order on Criminal Misc. Bail Application No. 4093 of 2021

1. Heard Sri Lal Mani Singh, Sri Anil Kumar Pathak and Sri Prashant Kumar Singh, learned counsels for the applicant; Sri Manish Goyal, learned Additional Advocate General assisted by Sri Rajesh Mishra, learned A.G.A and Sri Gyan Narayan Kanaujia, learned A.G.A-I for the opposite party - State of U.P.

2. This recall application has been filed on behalf of opposite party praying for recall of the order dated 30.09.2022 passed by this court whereby the applicant was directed to be enlarged on bail. It has been submitted by the learned Additional Advocate General that bail application was mentioned by the counsel for the applicant to be taken up out of turn on the ground of applicant having parity of role with co-accused, Ramjee @ Radhey Kashyap. At the time when the case was taken by the court the learned Additional Government Advocate along with learned Additional Advocate General were on their legs in Court No. 64 and were arguing bail application of co-accused, Uma Shankar Yadav @ Tanke, in the same case crime number. His bail application was rejected by the coordinate Bench of this court on the same day being Criminal Misc. Bail Application No. 4419 of 2022. The counsels aforesaid informed the court about the aforesaid order passed in the bail application of co-accused and hence the matter was directed to be listed on 14.10.2022. Subsequently, it was found that on 30.09.2022 the bail was granted to the applicant. The date was fixed in the presence of Additional Advocate General, hence the order dated 30.09.2022 appears to have been wrongly transcribed which deserves to be recalled.

3. Learned counsel for the applicant has vehemently opposed the submission. He has submitted that the bail application was taken up out of turn after due notice to the learned Additional Government Advocate along with number of such bail applications on 30.09.2022. It was the last working day of the court prior to Dussehra vacation and the information of all the cases mentioned as the cases having parity with some co-accused was duly notified to the Additional Government Advocate assigned duty in the court.

4. Counsel for the informant and learned Additional Government Advocate in the court were having full notice of the cases of parity mentioned before the court in the morning. All the cases of parity were called after lunch and the court after examining the role of applicant seeking parity with some co-accused granted / declined to grant bail. When the present case was called out, the Additional Government Advocate was heard and order was passed. After sometime Sri Rajesh Mishra, Additional Advocate General, who was not assigned the duty in this court, interrupted the court proceedings and informed the court that Sri Manish Goyal, Additional Advocate General, will address the court. Thereafter, Sri Manish Goyal, also appeared before the court and sought to argue the matter. Since there was paucity of time, the court directed the matter to be put up for hearing on 14th, October, 2022. He has further informed that he did not applied for the certified copy of the order dated 30.09.2022. Till date and the applicant has not been enlarged on bail.

5. This court after hearing the rival contentions, finds that the contentions of the recall applicant are correct and admitted by the other side. It appears that after the bail was granted to the applicant on the ground of parity the stenographer had changed. When the subsequent stenographer was taking down orders, mention was made during court proceedings by Sri Rajesh Mishra, learned A.G.A and Sri Manish Goyal, learned Additional Advocate General and this court directed the matter to be posted on 14.10.2022 but due to inadvertent mistake of non-communication of the subsequent oral order to the earlier stenographer, the order was transcribed and loaded on the official website of this court.

6. In view of the above consideration, the recall application is allowed. The order dated 30.09.2022 of this court is hereby recalled.

Order on Criminal Misc. Bail Application No. 4093 of 2021

1. Heard Sri Lal Mani Singh, Sri Anil Kumar Pathak and Sri Prashant Kumar Singh, learned counsels for the applicant; Sri Manish Goyal, learned Additional Advocate General assisted by Sri Rajesh Mishra, learned A.G.A and Sri Gyan Narayan Kanaujia, learned A.G.A-I for the State.

2. That according to prosecution story on 02.07.2020 the informant along with other police personnels was on picket duty in order to arrest Vikas Dubey in connection with Case Crime No. 191 of 2020, under Sections- 147,148, 504, 323, 364, 342, 307 IPC & Section 7 CLA Act, P.S. Chaubeypur, District- Kanpur Nagar. It is further case of prosecution that when the informant along with other police personnels came at a distance of 20 meters from the house of wanted accused, Vikas Dubey, they saw that a J.C.B machine was barricading the road by the wanted accused, Vikas Dubey, and his associates. It is further alleged that when the police personnels reached in front of the gate of house of Vikas Dubey the accused persons opened fire from their rifles, pistols and other weapons on the police personnels. 8 police personnels, including Circle Officer, Bilhaur, were done to death. Apart from this other police personnels received fire arm injuries upon their person. On these allegations an F.I.R. was lodged on 03.07.2020 at Case Crime No. 192 of 2020, under Sections- 147, 148, 149, 302, 307, 394 IPC & Section 7 CLA Act, P.S. Chaubeypur, District- Kanpur Nagar.

3. Counsel for the applicant has repeated his arguments of parity with co-accused, Ramji @ Radhe Kashyap, who has been enlarged on bail vide Criminal Misc. Bail Application No. 45273 of 2021 on 31.01.2022 and has prayed that the case of the applicant stands on identical footing and he may also be enlarged on bail the ground of parity with the aforesaid co-accused. He has further submitted that even if the ground of parity is ignored, the applicant has case on merits also. In the FIR he was neither named nor any allegation was made against him by the informant or the witnesses of fact in their statements recorded by the investigating officer under Section 161 Cr.P.C. He has been implicated in this case only because of being driver of vehicle of co-accused, Arvind Trivedi @ Guddan. He has submitted that his implication is based on the confessional statement of co-accused, Chhotu Shukla @ Akhilesh Kumar. His statement has no relevance in view of the section 25/26 of the Evidence Act. Even if it is considered to be relevant there is only allegation against the applicant that he was present in meeting called by Vikas Dubey wherein it was planned that no policeman shall be spared in case of attack on them in the night. No recovery of any weapon used in the alleged crime has been made from the applicant. He was at Mumbai along with his employer and co-accused, Arvind Trivedi @ Guddan and on coming to know of the incident from news on television he surrendered before the criminal court at Mumbai, Maharashtra on 11.07.2020 and on 14.07.2020 he was brought at criminal court to Kanpur Dehat. He was not identified by any of the injured police personnel and no identification parade was conducted. The applicant is in jail since 15.07.2020.

4. Sri Manish Goyal, learned Additional Advocate General, representing the state of Uttar Pradesh has relied upon the statement of co-accused, Vipul Dubey, wherein he has stated before the police that the applicant along with Jaikant Bajpayi, Prashant Shukla, Arvind Trivedi @ Guddan, used to come in Vikas Dubey. These four persons, including the applicant, used to take money from Vikas Dubey and lend it on interest to the people. He admitted that the above named four persons, including the applicant, were not present when the other co-accused were making firing on the police party. Thereafter he has given the details of the incident.

5. Learned Additional Advocate General has relied upon C.D. No.10 on 14.07.2020 wherein the statement of the main accused, Vikas Dubey, has been recorded. However, he has not been able to point out any role of the applicant in the statement of Vikas Dubey, except that Sushil Kumar Tiwari (applicant), was given licenced arms and cartridges sometimes by Arvind Trivedi @ Guddan for giving it to Vikas Dubey. The main accused, Vikas Dubey, named, Atul Dubey, Amar Dubey, Prabhat Mishra, etc., as the persons who killed the police men. He has further relied upon the C.D. No. 88 which is the brief of the investigation conducted by the investigating officer. He has recorded that Vikas Dubey had very good relationship with Jaikant Bajpai, Prashant Shukla, Arvind Trivedi @ Guddan and Sushil Kumar Trivedi (applicant) and they had knowledge about his planning to kill the police men. Arvind Trivedi @ Guddan used to send money and cartridges through the applicant to Vikas Dubey.

6. Learned Additional Advocate General has placed considerable reliance upon the bail rejection orders of Vinay Kumar Tiwari and Krishna Kumar Sharma, whose bail applications were rejected by the coordinate Bench of this court by the detailed order dated 21.09.2021. He has also brought on record the order of the Apex Court passed and S.L.P (Crl.) No. 6494-6495 of 2022 whereby the Apex Court has refused to interfere with the order of bail passed in favour of co-accused, Ramjee @ Radhey Kashyap on the ground that the SLP was preferred after considerable delay. Apex Court held that the impugned orders will not be treated as precedent in the case of co-accused.

7. Learned Additional Advocate General has placed before this court the bail rejection orders of co-accused, namely, Kushi, Vinay Kumar Tiwari, Rekha Agnihotri and Uma Shanker Yadav @ Tanke. He has further submitted that the parity would not be sole ground to decide the bail application and has relied upon number of judgments in this regard. He has further submitted that in view of the judgment of the Apex Court in S.L.P (Crl.) No. 6494-6495 of 2022 the applicant cannot claim any parity with co-accused, Ramjee @ Radhey Kashyap. Further reliance in this regard has been placed on the judgments in the case of Salim Khan vs. Sanjai Singh and Another, (2002) 9 SCC 670, Chaman Lal vs. State of U.P and Another, (2004) 7 SCC 525, National Investigation Agency vs. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, Rekha Singer vs. State of M.P, (2021) 3 SCC 729 and Indresh Kumar vs. State of U.P. and others, Criminal Appeal No. 938 of 2022, decided on 12.07.2022. He has submitted that of the statements recorded under Section 161 Cr.P.C., are required to be considered while deciding the bail application, whether they are admissible or not. He has also placed before this court the principles for grant or refusal of bail explained by the Apex Court in the cases of Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav and another, (2004) 7 SCC 528, Masroor vs. State of U.P and another, (2008) 14 SCC 286 and Prasanta Kumar Sarkar vs. Ashis Chatterjee and Another, (2010) 14 SCC 496.

8. After hearing the rival contentions, this court finds that as per argument of Additional Advocate General if all the statements of co-accused persons recorded under Section 161 Cr.P.C., are considered as gospel truth, even then there is no role assigned to the applicant by any of the co-accused of causing murder of any of the 8 police men killed by the main accused, Vikas Dubey and other co-accused. The statement of the main accused Vikas Dubey, recorded by the investigating officer and placed by the Additional Advocate General before this court also does not assigns any role to the applicant of causing murder of any of the 8 police men. The court below has not considered the evidence recorded by the investigating officer in correct perspective and rejected his bail on the basis of general observation that it is a serious matter, hence, applicant is not entitled to be enlarged on bail. However, in the rejection order of the court below it has come that the applicant was the driver of the Scorpio car of co-accused, Arvind Trivedi @ Guddan and on the direction of his employer, he supplied money and cartridges to Vikas Dubey. This allegation will not implicate the applicant for committing the offence of brutal murder of 8 police men.

9. Learned Additional Advocate General has not been able to point out any piece of evidence which clearly implicates the applicant for the alleged crime. In the statement of co-accused, Vipul Dubey, who was one of the main accused, it has been clearly stated by him that the applicant along with Jaikant Bajpayi, Prashant Shukla and Arvind Trivedi @ Guddan, were not present when he along with other co-accused were making firing on the police men. He has stated that the applicant and the other three persons named above used to take money from Vikas Dubey and lend it on interest to the people. If the statement of main co-accused, Vikas Dubey, is accepted as true at this stage, even then the role of the applicant does not appears to be of the main assailants who caused the brutal murder of 8 police men. The role of the applicant has not been properly considered by the court below while rejecting his bail application. The duty of the court is to carefully examine the role of each and every accused from the material collected by the investigating officer. The court cannot be swayed by sweeping allegations and emotional appeals of seriousness of crime alleged against the applicant in the alleged crime as a whole. By mere supply of money and arms to main co-accused, Vikas Dubey, he cannot be implicated in this case by implication under Section 149 I.P.C read with other sections.

10. The bail application of co-accused rejected by this court will not affect the applicant. They were in main assailants actively involved in the murder of 8 policemen, unlike the applicant, who has not been assigned any such role.

11. Considering the overall facts and circumstances of the case and material on record, this court is of the view that the applicant deserves to be enlarged on bail, otherwise than on the ground of parity with co-accused, Ramjee @ Radhey Kashyap.

12. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

13. Let the applicant, Sushil Kumar Tiwari, involved in Case Crime No. 192 of 2020, under Sections- 147, 148, 149, 504, 506, 353, 332, 333, 307, 302, 396, 412, 120-B and 34 IPC, Section 7 of C.L.A Act and Section ¾ Explosive Act, Police Station- Chaubeypur, District- Kanpur Nagar, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) The applicant will report his presence before the Police Station- Sarai Inayat, District- Prayagraj in first week of every second month till the trial against the applicant is concluded.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(iv) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(v) In case the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.

(vi) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

14. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

15. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

16. Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of one year as per Section 309 Cr.P.C.

17. Registrar (compliance) is directed to communicate this order to the trial court for necessary compliance within a week.

Order Date :- 01.11.2022

Rohit