Robin Bhati vs State Of U.P.
2023 Latest Caselaw 12014 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21447 of 2022
 

 
Applicant :- Robin Bhati
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sunil Kumar Upadhyay,Varad Nath
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1.This is the second bail application.

2. First bail application was rejected vide order dated 22.2.2022 by a reasoned order and the relevant paragraph is mentioned hereinafter:

"7. In the backdrop of above discussion on law as well as submission and facts of the case, the husband (Sunil) of deceased arranged contract killers (applicant and co-accused, Rinkoo) and paid Rs. One lakh in advance and thereafter the contract killers and co-accused, Sunil shot dead the deceased, who died due to multiple gun shot injuries. It is a case of planned murder wherein applicant has direct role of causing death by firearm and a person who has prima facie alleged to be contract killer, is not entitled for bail.

The bail application is dismissed. "

3. Heard Sri Vikas Srivastava, learned counsel for applicant, Sri Paritosh Malviya learned A.G.A.1st and perused the record.

4. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application (second bail application) seeking enlargement on bail in Case Crime No.838 of 2020, under Section 302, I.P.C., Police Station-Kosi Kalan, District-Mathura.

5. Applicant before this Court has filed this second bail application just after three months of rejection of first bail application mainly on the ground that co-accused Rinku was subsequently granted bail on 7.4.2022 wherein co-ordinate Bench has given following reasons:

"Having heard the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, (2018) 3 SCC 22, without expressing any view on the merits of the case, I find it to be a case of bail."

6. Learned cousnel for the applicant has tried to open the case on merit also that finding given as referred above are contrary to record and he was not alleged to be a contract killer. Though, no such averment has been taken in the application except a reference has been made in paragraph 22 that role of the applicant was to arrange contract killer and no role of firing was attributed to the applicant.

7. Learned cousnel for the applicant further submits that bail granted to co-accused is a subsequent material which could be considered in second bail application. Applicant is languishing in jail since 27.12.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.

8. Learned A.G.A. has opposed the bail application by submitting that since there is no subsequent event which requires consideration in this second bail application, therefore, it may be rejected.

9. I have considered the above submissions.

10. First argument of learned cousnel for the applicant is that subsequently co-accused Rinku has been granted bail and reasons given therein has been referred hereinabove, therefore, applicant is also entitled for similar relief.

11. Recently Supreme Court in Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and Brijmani Devi Vs. Pappu Kumar (2022) 4 SCC 497, has insisted that even while granting bail or rejecting bail, it must be accompanied by reasons.

12. Supreme Court recently in Indresh Kumar Vs. The State of Uttar Pradesh & Anr, Criminal Appeal No.938 of 2022 decided on 12.7.2022 has also not approved that bails are granted in case of henious offences just by referring to a judgment passed in Dataram Singh Vs. State of U.P. & Ors, (2018) 3 SCC 22, and for that relevant paragraph is referred hereinafter:

" The impugned order of the High Court incorrectly states that bail is granted considering all facts and circumstances, nature of the allegations, gravity of the offence, severity of the punishment, the evidence appearing against the accused and the law laid down in Dataram Singh vs. State of U.P. & Ors. reported in (2018) 3 SCC 22. This has not been done. The impugned order evinces non-application of mind.

In Dataram Singh vs. State of U.P.(supra), this Court held:

"2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet,occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case".

After referring to the observation in Emperor v. Hutchinson, reported in AIR 1931 All. 356, where the Court held that grant of bail is the rule and refusal is the exception, this Court added:

"6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory".

The observations and directions in Dataram Singh (supra) wherein the context of arrest and long custodial detention in a crime case under Section 138 of the Negotiable Instruments Act, 1881 for issuing cheques and then stopping payment of the cheque. Bail application had been rejected, first by the Trial Court and then bythe High Court even after about five months of detention of the accused in custody."

13. Though there is no need to consider the argument on merit as the rejection order has not been challenged before Supreme Court. However, only for reference, evidence on record would be relevant to mention hereinafter and for that confessional statement of co-accused Sunil would be relevant and the relevant part of it is mentioned hereinafter:

"?? ??? ????? ? ????? ???? ??? ?? ??? ?? 01 ??? ????? ???? ??? ??? ?? 09 ??? ????? ??? ???? ?? ??? ???? ?? ??? ????? ?? ??????? ?????? 19.12.2020 ?? ?? ?????? ?? ???? ??? ?? ???? ?????? ?? ??? ??? ????? ?? ????? ???? ?? ????? ??? ?? ???? ???? ?? ?? ?? ?? ??? ???? ????? ? ????? ??? ??? ?? ????? ??? ?? ??? ??, ?? ??? ??? ????? ?? ????? ?? ???? ??? ?? ??? ??? ?? ?? ????? ?? ?????? ??? 1520 ?????? ?? ????? ?? ?? ??? ??, ???? ???? ??? ??? ?? ????? ??? ????? ? ????? ?? ??? ??, ?? ?? ????? ???? ?? ??????? ??? ?? ??? ?? ???? ???? ???? ???? ??? ??? ?? ?? ???? ?? ????? ? ????? ???? ???? ?????? ????? ????? ???? ?? ??? ?? ?????? ?? ???? ??? ???? ??? ?? ?? ??? ??? ?? ? ?? ???? ?? ???? ???? ????? ???? ??? ?? ??? ??, ?????? ???? ??? ?? ????? ?? ????? ???? ?? ???? ???? ?? ??? ???? ??? ?? ??? ???, ???? ???? ??? ?????? ?????? ? ?? ???? ???? ?? ?? ???? ??? ????? ????? ?? ?? ???? ???? ?????? ?? ????? ?? ???? ??? ??, ?? ????? ?? ??? ?? ?? ???? ??? ????? ????, ???? ?? ???? ????? ????? ?? ??? ???? ???? ?? ??? ?????? ?? ??? ???? ?? ????? ?? ??? ?? ???? ????? ?? ???? ?? ????? ??? ????? ?? ??? ???? ???? ??????? ???? ?? ?????? ?? ???? ?? ????? ?? ????? ?????? ???? ?? ?????? ????? ???, ?? ????? ?????? ?? ?? ?? ??? ????? ??? ?? ???? ?????????? ?? ???? ??? ?????????? ?? ???? ???? ??????? ?????? ?? ????? ?? ?? ???? ??? ????? ??? ????? ?? ???? ????? ??? ???? ???? ???????? ????? ????? ???? ??????? ?? ???? ????? ????????? ???????? 838/2020 ???? 302 ???????? ?? ???? ????? ???? ?????????? ?????? ????? ???? ????"

14. Above referred portion specifically reflects the role assigned to applicant.

15. Be that as it may, this Court while considering the second bail application cannot take into consideration the order granting bail to applicant as it has not assigned any reason as well as order rejecting the bail application of applicant was also not placed before co-ordinate Bench.

16. Considering the above submissions on law as well as on fact, there is no subsequent event which requires consideration while considering the present second bail application.

17. Accordingly, this bail application is rejected.

Order Date :- 20.4.2023

SB