Chandrabhal Tripathi vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 13337 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 16
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11617 of 2022
 
Applicant :- Chandrabhal Tripathi
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Shailesh Kumar Srivastava
 
Counsel for Opposite Party :- G.A.,Sheo Prakash Singh
 

 
Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Shailendra Srivastava, learned counsel for the applicant, Sri Manoj Kumar Sahu, learned Addl. Government Advocate, Sri Sheo Prakash Singh, learned counsel for the informant and perused the record.

2. By means of the instant application the applicant Chandrabhal Tripathi S/o Mahadev Prasad Tripathi seeks bail in F.I.R./Case Crime No. 406 of 2020, under sections 147, 148, 149, 307, 302, 188, 120B, I.P.C., P.S. Kotwali Nagar, District Pratapgarh.

3. The aforesaid case has been registered on the basis of a First Information Report (F.I.R.) lodged on 09.05.2020 against 10 named accused persons, not including the applicant, and 2-3 unknown persons, alleging that the informant had paid Rs. 3 lacs as earnest-money to one of the named co-accused persons Sarvesh Tiwari, but later on it transpired that the plot in question was disputed. The informant demanded a refund of the earnest-money. Sarvesh Tiwari called the informant to the plot in question on 08.05.2020 at about 11.00 a.m. and when the informant reached there alongwith his brother and some other persons, all the accused persons were armed with repeater, pistols and rifles. The co-accused Aditya Singh and Monu caught hold of the informant's brother and they snatched away his licenced pistol and co-accused persons Sarvesh Tiwari, Anand Tiwari, Anjani Shukla and other persons started firing gun-shots due to which the informant's brother Ram Prasad got injured and fell down and the informant and some other persons also received injuries. The informant's brother was taken to the District Hospital, from where he was referred to Swaroop Rani Hospital, Allahabad, where he succumbed to the injuries during treatment.

4. In the statement of the informant recorded under section 161, Cr.P.C. he reiterated the F.I.R. averments. Regarding 2-3 unnamed persons mentioned in the F.I.R. the informant stated that he was not well and he will give information regarding those persons after recovering and after collecting information in respect of them.

5. In the additional statement of the informant recorded on 14.06.2020 he stated that besides the ten persons named in the F.I.R. one Chandrabhan Tiwari (applicant herein), Amrish Mishra, and Pappu alias Ashish Dhangarh were also involved in causing the incident. His brother has suffered gun-shots injuries due to the shots fired by the co-accused Anjani Shukla alias Radhey.

6. Further additional statement of the informant was recorded on 20.07.2020, wherein he stated that the accused persons have lodged a false F.I.R. bearing Case Crime No. 497 of 2020 against the informant and the persons from his side.

7. In the affidavit filed in support of the bail-application it has been stated that the applicant is innocent. He has been falsely implicated in the present case for the reason that he had good relations with persons of both the sides; the informant was pressurizing the applicant to give statement in his support and the applicant had declined his request, as the facts of the case were not known to him. It has further been stated in the affidavit that the applicant has no criminal history.

8. Learned counsel for the applicant has submitted that one of the co-accused persons Ashish Kumar Pal (whose name is mentioned in the additional statement of the informant as 'Ashish Dhangarh') has been granted bail by means of an order dated 19.12.2022 passed by this Court in Criminal Misc. Case No. 14106 of 2022. He has submitted that the case set up against the applicant is at par with that set up against the Ashish Dhangarh and, therefore, the applicant is also entitled to be released on bail on the ground of parity.

9. The State has filed a counter affidavit annexing therewith the statements recorded during investigation.,

10. The informant has filed a short counter-affidavit stating that this Court had granted bail to three of the co-accused persons- Anjani Shukla, Rahul alias Monu Tiwari and Rajkumar Maurya, and the order passed by this Court was challenged in Criminal Appeal No. 1551 of 2021 before the Hon'ble Supreme Court of India, which has been allowed by means of a judgment and order dated 11.12.2021 and the bail order passed by this Court has been set aside by the Hon'ble Supreme Court. Sri Singh has further submitted that another co-accused Aditya Singh had also been granted bail by this Court on the ground of parity, and that order was challenged by filing Criminal Appeal No. 821 of 2022, which appeal has also been allowed by the Hon'ble Supreme Court on the ground that the said co-accused had been granted bail on the ground of parity with other co-accused persons and since the bail orders of those other co-accused persons have been set aside, the order granted on the ground of parity was also set aside by the Hon'ble Supreme Court.

11. Although the informant has filed a short counter affidavit, but he has not denied the averments made in para-18 of the affidavit, filed in support of the bail-application that the applicant has falsely been implicated because he had declined to give statement in support of the informant, as the facts of the case were not known to him.

12. The bail-application of the co-accused Sarvesh Tiwari has been rejected by this Court by means of an order dated 18.08.2021 passed in Criminal Misc. Bail Application No. 528 of 2021. Bail-application of Ravi Singh alias Amit Pratap Singh has been rejected by means of the order of the same date passed in Criminal Misc. Bail Application No. 2698 of 2021 and Bail Application No. 2296 of 2021 filed by co-accused Amrish Mishra has been rejected by means of an order dated 18.08.2021.

13. The second bail-application No. 16511 of 2021 filed by the aforesaid co-accused Amrish Mishra has also been rejected by means of order dated 06.07.2022. The aforesaid Amrish Mishra has challenged this order by filing S.L.P. Criminal Appeal No. 33002 of 2022 and the Hon'ble Supreme Court declined to interfere with the order passed by this Court, by leaving it open to the applicant to file a fresh bail-application after recording of testimonies of public eye-witnesses.

14. Submission of the learned counsel for the informant is that the case set up against the applicant is at par with that set up against the co-accused Amrish Mishra, who was also not named in the F.I.R. and who was named in the additional statement of the informant.

15. Learned counsel for the informant has further submitted that till date testimony of only the informant has been concluded and he has further submitted that the accused persons are not cooperating with expeditious disposal of the trial and the cross-examination of P.W.1 runs into 86 pages, which indicates that the trial is being unnecessarily protracted, although by means or an order dated 27.01.2023 passed in Criminal Misc. Bail Application No. 9376 of 2022 filed by the co-accused Rahul alias Monu Tiwari, this Court had directed that the trial should proceed on day-to-day basis.

16. The bail-application of another co-accused Aditya Singh alias Major has been rejected by means of an order dated 21.04.2023 passed by this Court in Criminal Misc. Bail Application No. 9342 of 2022. While rejecting the said bail-application this Court has directed the trial court to ensure adherence to the earlier order of expediting trial and proceedings, without grant of any unnecessary adjournments to any side.

17. I have considered the aforesaid facts and circumstances of the case and the submissions advanced by the learned counsel for the parties.

18. While dealing with an application for grant of bail the Court has only to consider the facts for the limited purpose of deciding the bail only and the Court is not to hold a mini-trial. What prima facie appears from the material placed before the Court at this stage is that the incident occurred on 08.05.2020 at about 11.00 a.m. and the F.I.R. was lodged on 09.05.2020 at 16.30 hrs, i.e. after about 30 hrs since occurrence. That the F.I.R. mentions the names of 10 accused persons and the applicant is not named in the F.I.R. The applicant was not named even in the statement of the informant recorded under Section 161 Cr.P.C. and he stated that he would inform about the other three persons after he recovers from his illness and gathers information regarding them. The applicant's name surfaced for the first time in the additional statement of the informant recorded on 14.06.2020, i.e., after about 35 days since lodging of the F.I.R. In the additional statement of the informant recorded on 14.06.2020 the informant stated that apart from the ten persons named in the F.I.R., Chandrabhan Tiwari (the applicant), Amrish Mishra and Ashish Dhangarh were also involved in the incident, but he did not disclose the source from which he got the information of involvement of the additional three named persons. Even in his additional statement, the informant did not assign any specific role to the applicant.

19. The other co-accused persons, whose bail-orders have been cancelled by the Hon'ble Supreme Court, had been named by the informant in the F.I.R. itself as also in his statement under section 161, Cr.P.C. The applicant has been named in the additional statement of the informant alongwith two other persons Amrish Mishra and Ashish Dhangarh. Although bail-application of Amrish Mishra has been rejected by this Court and his second bail-application has also been rejected, it is settled that the 'Principle of Parity' applies in granting bail only, and it does not apply to rejection of bails. One of the other similarly placed co-accused persons Ashish Kumar Dhangarh has been granted bail by means of order dated 25.04.2023 passed by a Coordinate Bench of this Court in Criminal Misc. Bail Application No. 4795 of 2023 and the applicant's case is at par with the case of the co-accused Ashish Kumar Dhangarh.

20. In Satendra Kumar Antil v. CBI, (2022) 10 SCC 51, the Hon'ble Supreme Court has held that "Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offence shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India."

21. Keeping in view the aforesaid facts and without making any further observation, which may affect the outcome of the trial, I am of the view that the applicant is also entitled to be released on bail.

22. Accordingly, this bail application stands allowed.

23. Let the applicantChandrabhal Tripathi S/o Mahadev Prasad Tripathi be released on bail in the aforesaid F.I.R./Case Crime No. 406 of 2020, under sections 147, 148, 149, 307, 302, 188, 120B, I.P.C., P.S. Kotwali Nagar, District Pratapgarh, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to following conditions:-

(i) the applicant shall not tamper with the prosecution evidence;

(ii) the applicant shall not pressurize the prosecution witnesses;

(iii) the applicant shall appear on each and every date fixed by the trial court.

24. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

(Subhash Vidyarthi, J.)

Order Date :- 28.4.2023/A.Nigam