Aditya Singh Alias Major S/O ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 12312 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9342 of 2022
 

 
Applicant :- Aditya Singh Alias Major S/O Suryan Narayan Singh (Second Bail)
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko
 
Counsel for Applicant :- Alok Kumar Tiwari
 
Counsel for Opposite Party :- G.A.,Sheo Prakash Singh
 
ALONG WITH
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15657 of 2021
 

 
Applicant :- Aditya Singh @ Major
 
Opposite Party :- State Of U.P. Thru Prin.Secy. Home Lukcnow
 
Counsel for Applicant :- Alok Kumar Tiwari,Akhilesh Chandra Shukla
 
Counsel for Opposite Party :- G.A.
 
*****
 
Hon'ble Jaspreet Singh,J.

1. Heard Shri Alok Kumar Tiwari and Shri Akhilesh Chandra Shukla, learned counsel for the applicant, Shri Shiv Prakash Singh, learned counsel for the complainant and Ms. Sikha Sinha, learned Additional Government Advocate for the State.

2. The accused-applicant Aditya Singh @ Major son of Surya Narayan is implicated in Case Crime No.406/2020, under Sections 147, 148, 149, 302, 307 IPC.

3. Initially, the first bail application moved by the applicant bearing No.11719/2021 was allowed by this Court on 21.10.2021 primarily on the ground of parity that another co-accused in the said crime number namely Rahul @ Monu Tiwari, who was assigned a similar role was enlarged on bail. The complainant had assailed the order of bail granted to Rahul @ Monu Tiwari before the Apex Court, which came to be cancelled by the Apex Court by means of the order dated 11.12.2021. The Apex Court by the said order also cancelled bail of other co-accused namely Anjani Kumar Shukla and Raj Kumar Mauriya.

4. In view of the aforesaid, the complainant also challenged the bail granted to the present applicant Aditya Singh @ Major and the Apex Court noticing that Aditya Singh @ Major was enlarged on bail only on the ground of parity and since the bail of the co-accused Rahul @ Monu Tiwari whose parity was given and his bail had been cancelled by the Apex Court, so the bail granted to the present applicant was cancelled by the Apex Court by means of the order dated 17.05.2022.

5. It is in the aforesaid backdrop that the applicant has filed this second bail application bearing No.9342/2022 which is before this Court.

6. The record would also indicate that initially the present applicant was charged in Case Crime No.406/2020, under Sections 147, 148, 149, 302, 307 IPC, however, after the investigation, the charge-sheet submitted before the Sessions Court certain other Sections namely 188, 120-B IPC and Section 3/25/27 of the Arms Act were also added. This prompted the present applicant to move a bail application before the Sessions Court which came to be dismissed by the Additional Sessions Judge, Court No.2, Pratapgarh by means of the order dated 11.11.2021 and consequently the present applicant filed the first bail application against the added sections before this Court which is registered as Bail Application No.15657 of 2021 and connected and listed before this Court.

7. Since, both the bail applications are before this Court, hence they have been heard together and are being decided by this common judgment.

8. From a perusal of the FIR dated 09.05.2020 lodged by the complainant Laxman Prasad Pandey, it is alleged that the complainant had paid a sum of Rs.3,00,000/- as advance money to Sarvesh Tiwari @ Sahab Tiwari for purchasing of plot in Maruth Nagar, District Pratapgarh. Later, it revealed that the plot which was shown by Sarvesh Tiwari @ Sahab Tiwari to the complainant did not have a clear title inasmuch as it revealed that the said plot was carved out from alluvial and diluvial action of Sai River whereas the revenue authorities had made inquries and after due measurements, a park was proposed to be constructed on the said land. Somehow, Sarvesh Tiwari @ Sahab Tiwari in connivance with the revenue authorities had got the land use/category changed and had started carving out plots for sale.

9. In view of the aforesaid the complainant had started insisting Sarvesh Tiwari @ Sahab Tiwari to return the earnest money which was being avoided by Sarvesh Tiwari @ Sahab Tiwari, but then he called the complainant to reach the site on 08.05.2020 at 11:00 AM and take back his money. The complainant along with his brother Ram Prasad Pandey, Subhash Saini and Surendra Tiwari and few other persons reached the site at Maruth Nagar. On reaching the site, the complainant saw that Sarvesh Tiwari @ Sahab Tiwari was already present at the site along with Anand Tiwari @ Vivek, Anjani Shukla @ Radhey, Aditiya Singh @ Major (the present applicant), Monu Tiwari @ Rahul, Raj Kumar Mauriya, Amit Raja, Ravi Singh, Vinod Yadav @ Monu, Ravi Mishra and 2-3 other unknown persons. It is further stated that the persons present at the site, along with Sarvesh Tiwari @ Sahab Tiwari, were duly armed with weapons and had a repeator pistol and rifle amongst others. Sarvesh Tiwari @ Sahab Tiwari asked the complainant Laxman Prasad Pandey and the persons accompanying him to sit and at that time when the complainant asked for return of his earnest money, at that time the present applicant Aditya Singh @ Major, Monu Singh @ Rahul, Raj Kumar Mauriya and Amit Raja exhorted that lets kill these people and finish the chapter once and for all. Immediately thereafter the present applicant Aditya Singh @ Major and Monu Tiwari @ Rahul caught the brother of the complainant Ram Prasad Pandey and snatched his licenced pistol. Then Sarvesh Tiwari @ Sahab Tiwari with Anand Tiwari, Anjani Kumar Shukla and others, with an intent to kill the complainant and the persons who had accompanied him, started firing with their weapons and chased the complainant, his brother and the other persons accompaning him. In the aforesaid firing incident, the brother of the complainant Ram Prasad Pandey received a bullet injury and he fell down while others were also injured. However, the complainant and other persons accompaning him carried Ram Prasad Pandey on their back with the help of other persons and they managed to get out from the said site and reached the District Hospital at Pratapgarh. Since, the condition of Ram Prasad Pandey was serious, he was immediately referred to the higher centre at Allahabad and during his treatment at Allahabad, he succumbed to his injuries. After the post-mortem and cremation, the complainant lodged the FIR on 09.05.2020.

10. In respect of the said incident another FIR was lodged by Sarvesh Tiwari @ Sahab Tiwari which was registered as Case Crime No.407/2020 on 12.05.2020.

11. In the aforesaid factual backdrop, the learned counsel for the applicant has urged that it is a case of cross FIR and during the investigation of the FIR, which was lodged from the side of the present applicant by Sarvesh Tiwari @ Sahab Tiwari, it revealed that the allegations made in the FIR against the present applicant that the dispute started in respect of a plot of land which Sarvesh Tiwari @ Sahab Tiwari had connived with the revenue authorities and tried to sell it to Laxman Prasad Pandey turned out would false and the learned counsel for the applicant has referred to the Paragraph-25 of the second bail application to draw the attention of the Court to the statement made by the Tehsildar, Sadar.

12. In this regard, it is also submitted that the version as contained in the FIR bearing Case Crime No.406/2020 were not found to be plausible inasmuch as it was stated that apart from Ram Prasad (the deceased), the other persons, who had accompanied the applicant, had also received injuries. The attention has been drawn to the injury report of Subhash Saini and Surendra Tiwari and it is submitted that insofar as Subhash Saini, he had received simple injury. Insofar as Surendra Tiwari is concerned, his injuries appeared to have been caused with hard and blunt object so also the injuries of the complainant Laxman Prasad Pandey were also of simple nature and did not involve any active bleeding, hence, the version in the FIR that Sarvesh Tiwari @ Sahab Tiwari and other persons accompanying him had opened indiscriminate firing which caused injuries to not only the deceased but other persons also is not made out rather the entire version appeared to have been concocted in order to give colour and to falsely implicate the present applicant Aditya Singh @ Major amongst others.

13. Learned counsel for the applicant has also submitted that from a perusal of the FIR in question, it would indicate that the only role ascribed to the present applicant namely Aditya Singh @ Major is that he along with other co-accused namely Monu Tiwari @ Rahul had caught hold of the complainant's brother and snatched his licenced pistol. There is no averment or allegation against the present applicant that he had opened fire rather the allegation in the FIR points to Sarvesh Tiwari @ Sahab Tiwari, Anand Tiwari, Anjani Shukla, who are said to have opened indiscriminate firing. Thus, the only role that can be ascribed to the present applicant is that of exhortation and moreover where the deceased Ram Prasad died due to bullet injury and there were more than one person who allegedly opened firing, it cannot be said that from whose weapon the bullet had hit the deceased which caused his death. This assumes signifance as that it is only Ram Prasad Pandey alone who received any bullet or firearm injury and no other person, therefore, it is highly improbable and it is unbelievable to rely upon the version as stated in the FIR of Case Crime No.406/2020.

14. It is also submitted by the learned counsel for the applicant that in the aforesaid incident, four vehicles were recovered by the police out of which three belonged to the complainant side and only one was from the side of Sarvesh Tiwari @ Sahab Tiwari, who lodged the other, cross FIR of Case Crime No.407/2020.

15. Learned counsel for the applicant has also submitted that the statement of the complainant was recorded on 09.05.2020, a copy of which has been brought on record as Annexure No.5, wherein he had supported the version made in the FIR. However, subsequently, a supplementary statement was recorded on 14.06.2020, wherein the complainant had improved his version and also taken the names of Chandra Bhan Tiwari, Ambrish Mishra, Pappu @ Ashish to cover the alleged 2-3 unknown persons, against whom the FIR was also lodged. In the statement recorded on 14.06.2020, the complainant further improved the case and stated that Anjani Shukla @ Radhey had fired with DBBL Gun which hit the injured Ram Prasad on his chest and thus, it is sought to be urged that calculatively the version has been improved by the complainant only to falsely implicate the applicant and the other co-accused persons as there were various discrepancies in the original version as recorded in the FIR.

16. Learned counsel for the applicant has also pointed out that another co-accused namely Ravi Singh @ Amrit Prasad Singh his second bail application bearing No.5161/2022 was considered by a Coordinate Bench of this Court and bail has been granted on 26.09.2022, a copy of the said order has also been brought on record as Annexure No.4 along with the rejoinder affidavit filed on behalf of the applicant.

17. Learned counsel for the applicant has further submitted that the applicant and the complainant had cordial relationship in the past and they have even worked together in respect of real estate business. However, since, there was discrepancies in repayment of certain amount and financial transactions, accordingly, in order to falsely implicate and put pressure on the applicant to give up his claim, the applicant has been implicated apart from the fact that the applicant has been in jail since 17.06.2021 and moreover the trial is not likely to conclude in near future and in the aforesaid circumstances, the applicant is entitled to be enlarged on bail.

18. In support of his submissions, learned counsel for the applicant has placed reliance on the decisions of the Apex Court in Azhar Sah v. State of Bihar and others, 2008 AIR SCW 2713; Dataram Singh v. State of Uttar Pradesh and another, AIR 2018 SC 980; Mahipal v. Rajesh Kumar Alias Polia, AIR 2020 SC 670 and Deepak Yadav v. State of U.P., AIR Online 2022 SC 768.

19. Per contra, learned counsel for the complainant Shri Shiv Prakash Singh has submitted that the role of the applicant has very well been defined in the FIR and he is actively involved in the entire episode of indiscriminate firing. The manner in which the incident occurred, a group of persons involved in indiscriminate firing which led to the death of one person and it created an atmosphere of fear and terror so much so that the situation had to be controlled by deployment of PAC. In such circumstances, it cannot be said that the role of the applicant is not significant which may be given any benefit, at this stage.

20. Learned counsel for the complainant has further pointed out that the first bail application of Sarvesh Tiwari @ Sahab Tiwari, the co-accused was rejected by a Coordinate Bench of this Court on 18.08.2021 even the second bail application of the co-accused Sarvesh Tiwari @ Sahab Tiwari was rejected on 05.09.2022 and the copies of the two orders relating to the co-accused Sarvesh Tiwari @ Sahab Tiwari are on record as Annexure No.SCA-3 and Annexure No.SCA-6 with the short counter affidavit filed by the complainant.

21. It is also pointed out that another co-accused namely Amrish Mishra whose first bail application was rejected on 18.08.2021 and his second bail application also came to be rejected on 06.07.2022 and against the rejection of the second bail application, the co-accused Amrish Mishra had approached the Apex Court and his petition came to be dismissed by the Apex Court on 12.12.2022 in Special Leave Petition (Criminal) Diary No.3302/2022.

22. It is further pointed out that even the bail application of Anand Tiwari another co-accused was rejected by a Coordinate Bench of this Court on 28.09.2022. Thus, it would be seen that repeated efforts made by the co-accused for bail has not found favour with the Court inasmuch as there is a clear case of a heinous crime been committed in broad day light and for the said reasons, the applicant is not entitled for bail.

23. Learned counsel for the complainant lastly urged that insofar as the case of Ravi Singh @ Amit Pratap Singh is concerned, he was granted bail on his second bail application only after the Court was satisfied that he was able to establish his plea of alibi that he was not preset at the place of occurrence rather he was in the H.D.F.C. Bank and this fact was duly corroborated by the Manager of the said Bank who had informed that the said co-accused Ravi Singh @ Amit Pratap Singh was present in the bank to encash a cheque. Thus, in the instant case where there is clear statement that the present applicant Aditya Singh @ Major was present and he was the one who had exhorted and thereafter had caught Ram Pratap and snatched away his licenced pistol and it is on his calling that the entire event was triggered which led to indiscriminate firing and death of one person. Thus, for all the reasons, the applicant is not entitled to bail and it deserves to be rejected.

24. Ms. Sikha Srivastava, learned Additional Government Advocate for the State has primarily submitted that it is a case where the involvement of the applicant is certain. It is further submitted that on the pointing of the applicant, a pistol was also recovered which persuaded the prosecution to add additional Sections 188, 120-B IPC and Section 3/25/27 of the Arms Act against him.

25. It is also urged that the charge-sheet has been filed and a Coordinate Bench of this Court before whom one of the co-accused had filed his bail application and the Court while declining to accept it, it has expedited the trial and has directed it to go on day to day basis and since at the moment certain public witnesses, who are crucial are being examined, in the aforesaid circumstances, it will not be appropriate to enlarge the applicant on bail as it may have a deliterious effect on the trial, but in the given circumstances and at the current stage of the trial, the bail application deserves to be rejected.

26. The Court has heard learned counsel for the parties at length and has also perused the material on record.

27. Before adverting to the respective submissions, it will be appropriate to refer to the decisions cited by the learned counsel for the applicant. In the case of Azhar Sah (supra), it would reveal that the High Court had granted bail treating the case of the accused in the said case to be different than that of the other co-accused. The High Court had noticed that in a case free fight wherein there were allegations of having received injuries from the other side as well, but the accused did not sustain any injury and that the said accused was a Bank Manager and was not even present at the spot and taking the cumulative assessment, the High Court had granted bail to the said person and the same was affirmed by the Apex Court. However, in the instant case, the facts are quite different and in the instant case it clearly indicates that the applicant herein was named and has been ascribed with a well defined role and for the said reason the case has no applicability.

28. In the case of Dataram Singh (supra), the Apex Court has noticed the general propositions regarding the bail and coming to the facts of the said case, the applicant before the Apex Court was charged with the offence of cheating . Accordingly, from the facts, it would indicate that it does not have any bearing on the instant case which is a case under the grave sections of 302, 307 and 120-B IPC amongst others.

29. In the case of Mahipal (supra), it would indicate that the Supreme Court has set aside the bail granted by the High Court on the ground of non reasoned order which is not a case at hand and for the said reason, the same has no applicability.

30. In the case of Deepak Yadav (supra), it would indicate that the bail which was granted by the High Court was set aside by the Supreme Court and it noticed that it was a manifestly incorrect on the part of the High Court to grant bail without taking into consideration the relevant facts and circumstances. Accordingly, the said case also does not have any applicability.

31. Be that as it may, it will be still relevant to notice that the issue regarding grant or refusal of bail depends from case to case but the Court is required to consider the nature of offence, severity of punishment and a prima-facie view of involvement of the accused. Reasonable evidence in support of the accusations have to be considered prima-facie. Also whether there is existence of reasoanble apprehension of the witnesses or evidences being tampered with or there being any threat for the complainant.

32. Noticing the aforesaid parameters and sequence of events leading to the incident and how it occurred, it is prima-facie clear that the applicant did have a role as alleged in the FIR which is also somehow corroborated with the statement of the complainant. The record also indicates that the incident had created an atmosphere of terror amongst the local residents and in order to get the situation in control, the PAC had to be deployed especially when the COVID-19 was reigning in the country. The post-mortem report of Ram Prasad clearly reveals that he had received a firearm entry wound, with 3 bullets on the right forearm and one metal bullet recovered from left side of the chest.

33. Also taking note of the fact that pistol was recovered from the applicant and the other co-accused were also present along with the applicant with firearms and in a case where it is yet to be seen and adjudicated that who was the aggressor of the two sides and especially when there is a cross FIR, which prima-facie confirms the incident which resulted in a shootout where Ram Prasad sustained bullet injuries and expired. Even if prima-facie it is considered that the complainant along with his brother and other persons had reached the site to receive his money, yet what promoted Sarvesh Tiwari @ Sahab Tiwari and his possee including the applicant to carry firearms and be present in such number taken there was a nationwide lockdown on account of COVID-19 Pandemic.

34. This Court further finds that the bail applications of the other co-accused including that Sarvesh Tiwari @ Sahab Tiwari has been rejected so much so the second bail application of Amrish Mishra was rejected and even the Apex Court did not deem appropriate to interfere especially noticing not much role has been ascribed to Amrish Mishra, though the role ascribed to the present applicant is much more well defined.

35. Considering the overall facts and circumstances and also noticing that the trial is going on and the public witnesses are under examination, accordingly, at this stage, enlarging the applicant on bail may have some negative impact on fair, expedient and fear free examination of the witnesses, hence, this Court is not inclined to enlarge the applicant on bail at this stage, leaving it open that in case during trial if some fresh material or evidence is brought on record to indicate any changed circumstances or it dilutes the case of the complainant after the testimonies of eye witnesses and other public witnesses are recorded then the same can be considered on its own merits, but not at this crucial stage of trial. Consequently, the second bail application bearing No.9342/2022 and Bail Application No.15657/2022 are rejected. Trial Court to ensure adherence of the earlier order of expediting the trial and proceeding without granting of any unnecessary adjournments to any side.

Order Date :- 21st April, 2023

Rakesh/-