Allahabad High Court
Pramod Kumar Mishra vs State Of U.P. on 19 December, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:240350
Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46949 of 2023
Applicant :- Pramod Kumar Mishra
Opposite Party :- State of U.P.
Counsel for Applicant :- Ramanuj Tripathi,Apurva Prakash Tiwari,Ashwani Tripathi
Counsel for Opposite Party :- G.A.,Ramesh Kumar Shukla
Hon'ble Pankaj Bhatia,J.
1. Heard learned counsel for the applicant, learned AGA for the State; Shri Deepak Dubey, learned counsel appearing for the informant and perused the record.
2. The FIR in question was lodged alleging that on 17.07.2023 at about 4 PM, the brother of the informant was standing at a place in P.S. Naini near Rambagh Labour Crossing when one bus bearing No.UP 70 HT 9074 came and stopped from which two persons namely Pramod Mishra and Adarsh Kumar Mishra alongwith 8 to 10 persons on account of old enmity, forcefully dragged the brother of the informant in bus and after abducting him, took the bus towards Koraon. It is also alleged that during the entire bus journey, the said two persons attacked the brother of the informant with the use of rods which resulted in grievous injuries. It was also alleged that one of the said persons had threatened the brother of the informant that he would be killed. It was also alleged that the brother of the informant was threatened that if he does not stop plying the bus, they would have got him killed.
3. In the said backdrop, it was alleged that the persons named in the FIR, including 4 named and 8 to 10 unnamed persons, were guilty of abduction. The FIR also reveals that when the brother of the informant became unconscious, the was thrown on the way. In the light of the said allegations contained in the FIR, the applicant has been apprehended alongwith the other accused. It bears from record that the applicant was said to be driving the bus in which the alleged abduction happened.
4. Submission of learned counsel for the applicant is that one of the co-accused namely Adarsh Kumar Mishra has been enlarged on bail by this Court vide order dated 30.10.2023. He argues that as the allegations of abduction and subsequently beating against the applicant are similar to the co-accused Adarsh Kumar Singh, who has been enlarged on bail, the applicant should also be enlarged on bail on the ground of parity.
5. As regards the criminal antecedent of the applicant, the same has been explained in the bail application as well as in the rejoinder affidavit.
6. Learned counsel for the informant strongly opposes the bail application by arguing that no question of parity arises as the co-accused Adarsh Kumar Singh to whom the bail has been granted had a role different than the applicant. He further draws my attention to the call detail records (CDR) referred to in the charge-sheet and has been filed alongwith the counter affidavit to demonstrate that on the date in question, the CDR demonstrates that at about 3:45 PM, the applicant was located at Behrana where the alleged incident took place. In the light of the said, he argues that once CDR records the presence of the applicant on the spot in question, the bail should be denied.
7. He has placed reliance on an order passed by the Supreme Court in the case of Bhoopendra Singh v. State of Rajasthan & Anr.; Criminal Appeal No.1279 of 2021 decided on 29.10.2021 wherein the Supreme Court while hearing the Criminal Appeal in the context of the bail application had noted down that the CDR would be a relevant criteria. He specifically places reliance on Para - 13 & 14 of the said judgment which are quoted hereinbelow:
"13. On the first aspect, the charge-sheet contains the following details in regard to the use of the mobile numbers of the second respondent:
"From them analysis of these Call Details, following facts have come to light: 1. Mobile Number: [xxxxxxxx00] (Omvati): - The Call details of this Mobile Number were procured from date 01.08.2017 onwards until the date of occurrence of the case incident and found that said number was active until the date 09.09.2017 after the aforesaid date of 01.08.2017 and its corresponding IMEI Number was found to be [xxxxxxxxxxxx810]. It has also come to light that after said date 09.09.2017, in said mobile phone of IMEI: [xxxxxxxxxxxx810], some other SIM was found to be active or not to find out the same, the Call Details corresponding to said IMEI No. [xxxxxxxxxxxx810] was obtained for Mobile Number [xxxxxxxx36] in the course of which it came to be known that said Mobile Number was active until the date of incident 11.09.2017.
2. Mobile Number [xxxxxxxx36] (Omvati): - Mobile Number [xxxxxxxx36] related SIM Card was found to have been issued in the name of Guddi wife of Shri Lalsingh, R/o; Sabaura, District: Bharatpur, Omvati has used the Mobile Phone of IMEI No: [xxxxxxxxxxxx810] in the past for making and receiving calls to and from Mobile No: [xxxxxxxx00] and then from the same mobile later also operated Mobile Number [xxxxxxxx36] which clearly indicates that said Mobile has been used by Omvati only and not Guddi. When the call details of Mobile Number [xxxxxxxx36] was analysed it was found that the mobile location on date 11.09.2017 as Kumher, Nagla Baghera Post Bauraayi, Anand Nagar, Bharatpur, Ranjit Nagar, Bharatpur, near Railway Station: Bharatpur and found that from said Number, she has made several calls and conversed with other Mobile Number [xxxxxxxx31]."
14. The mobile number with which the cell phone of the second respondent was in contact with is of the co-accused Prahlad, who is alleged to be a hired sharpshooter. Apart from the above two mobile numbers, there were two other mobile numbers which were in the use by the second respondent, as indicated in the following extracts from the charge-sheet:
"7. Mobile Number: [xxxxxxxx57] (Omvati):- In the course of investigation, in this case matter, it has come to light that Mobile No: [xxxxxxxx57] has been used in the name of one Pradeep son of Udaysingh resident of Badeeka, Tehsil Kathoomar, District: Alwar and its IMEI [xxxxxxxxxxxx960] was under consistent usage too. On the date of occurrence of the case incident i. e., 11.09.2017, the location of this number was traced as Ashok Nagar, Near: Subhash Nagar, Bharatpur, Nagal Ganga, Tehsil: Kumher, Kumher, Rarah. Said IMEI based CDR was obtained fro[m] which it was found that [xxxxxxxx89] was an active number and was found to be under the usage of Omvati.
8. Mobile Number [xxxxxxxx89] (Omvati):- this Mobile Number [xxxxxxxx89] was found to have been issued in the name of Omvati ? wife of Ratansingh ? resident of Sabaura, Police Station: Kumher, Bharatpur and on analysing the CDR of said number it was found to have been used in an instruments or instrument of IMEI Numbers [xxxxxxxxxxxx970] and [xxxxxxxxxxxx960]. When the CDR of IMEI No. [xxxxxxxxxxxx960] was procured, it was found that Mobile Number [xxxxxxxx57] related SIM card has been used in it. In this way, it has become apparent that said Mobile No: [xxxxxxxx57] was used by Omvati wife of Ratansingh, resident of Sabaura, Kumher, Bharatpur and the aforesaid IMEIs [xxxxxxxxxxxx970] & [xxxxxxxxxxxx960] were used from a single Mobile Handset by her. On 11.09.2017 ? i. e. the date of occurrence of this case incident, its location was traced as Ashok Vihar, Subhash Nagar, Bharatpur, Kumher, Ranjeet Nagar, Bharatpur, Near Railway Station Bharatpur etc."
8. He further places reliance on another order passed by the Supreme Court in the case of The State of Jharkhand v. Dhananjay Gupta @ Dhananjay Prasad Gupta; Criminal Appeal No.3498 of 2023 (Arising out of SLP (Cri) No.10810 of 2023) decided on 07.11.2023 wherein the Supreme Court has made the following observation in Para - 5:
"5. When the offences alleged, inter alia, includes one under Section 307, IPC and the accused concerned is so arraigned with the aid of Section 149, IPC, such submissions, reflected in paragraph or the mere factum of completion of investigation by itself, cannot be the reason(s) for grant of bail without due consideration of the relevant aspects. At any rate, mere claim of innocence or undertaking to participate in the trial or contention of absence of specific allegation of any overt act cannot, in such circumstances, be assigned as reasons for grant of bail in a case of serious nature. We are of the considered view that in such circumstances, impugned order deserves to be set aside and the matter is liable to be remanded to the High Court for fresh consideration in accordance with law. In that view of the matter, the impugned order dated 12.01.2023 passed by the High Court in B.A. No.12508 of 2022 stands set aside and the matter is remanded back to the High Court for fresh consideration in accordance with law. The application which culminated in the impugned order is restored into the file in its original number to facilitate such consideration. We make it clear that we have not made any observation touching the merits."
9. He further places on record an order passed by the Supreme Court in the case of Rohit Bisnoi v. State of Rajasthan; 2023 (125) ACC 669 wherein, in Para 15, there is a reference to the call tower records being relied upon by the prosecution. He also places reliance on a judgment of the Supreme Court in the case of State of U.P. v. Jai Dutt and Anr.; (2022) 3 SCC 184 in support of his contention that the nature of the injuries was severe and could also lead to death.
10. He then draws my attention to the medical report on record which records the nature of injuries sustained by the victim, which is as under:
"?????? CT. SCAN ??????? ????? ?????? ?????? DEPARTMENT OF RADIODIAGNOSIS M.L.N. MEDICAL COLLEGE AND S.R.N. HOSPITAL, PRAYAGRAJ Name Kuldeep shukla Age 32 Y/M Date 17 July 23 H/O Head injury and MBI d/t assault S.no 731 ?? ??????? ?????? ???? ????? ??? ??? Non MLC. Report CT. Scan Report NCCT HEAD NG TUBE NOTED IN SITU. Sub galeal hematoma of maximum thickness (m 7mm) is noted in left frontal region of scalp and of maximum thickness (m4mm) is noted in bilateral parietal region of scalp. Breach is noted in skin and subcutaneous tissue in left frontal region of scalp. Posterior fossa 4th ventricle is normal and midline.both cerebellar hemisphere and brain stem are normal. Supratentorial 3rd ventricle and bhoth lateral ventricles are normal with septum in midline. Attenuation value of brain parenchyma is normal. Bilateral sylvian fissures, cortical sulci and basal cisterns are normal. Visualized bones appear normal in shape, position and outline. IMPRESSION CT Findings are suggestive of sub galeal hematoma in left frontal region of scalp and in bilateral parietal region of scalp with Breach in skin and subcutaneous tissue in left frontal region of scalp. Sd. Dr. Sanjai kr singh J.R. Radiodiagnosis ??? ?????? ???? ????? ??????? ????? ??0 ??? ??"
11. In the light of the said, the submission of learned counsel for the informant is that the bail application deserves to be rejected.
12. Learned AGA has also opposed the bail application.
13. It is a common ground in between the parties that the charge-sheet has been filed and the trial has yet to start.
14. In the light of the submissions as recorded above, what transpires is that the co-accused has been enlarged on bail; the applicant was assigned the role of driving the vehicle in question. It also bears that the dispute occurred in between the parties on account of plying of the vehicle on the specified route. Prima-facie, it was alleged that the brother of the informant was threatened to stop plying the vehicle failing which he was threatened to be exterminated.
15. It is necessary to note the ingredients of Section 364 IPC, which are as under:
"364. Kidnapping or abducting in order to murder.?Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Illustrations:
(a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.
(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section"
16. Section 308 IPC, the other serious section invoked against the applicant, is as under:
"308. Attempt to commit culpable homicide.?Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration:
A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he there by caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section."
17. Prima-facie, to bring home the charge under Section 364 IPC, it is essential that the kidnapping or abduction should be in order to murder a person or to dispose off the said person so as to put in danger of being murdered, which prima-facie, may not be attracted in view of the assertions contained in the FIR that the informant's brother was threatened for not plying on the route in question.
18. The call detail records of the applicant heavily relied upon by the counsel for the informant would be of no avail as the CDR does not record the presence of the applicant in the entire stretch of 80 km. It is also essential to note the statement of the victim which itself states that during the period when the victim was attacked, one of the co-accused Adarsh Kumar Mishra made him talk with Prabhateshwar Mishra. The said submission that one the co-accused had in fact, permitted the victim to call on mobile, prima-facie raises a doubt over the prosecution story. It is clear that the charge-sheet has been filed, the criminal antecedent of the applicant has been duly explained and there is nothing on record to demonstrate that the applicant, if enlarged on bail, can in any way adversely affect the trial, as such, the applicant is entitled to be enlarged on bail. In view thereof, the application is allowed.
19. Let the applicant Pramod Kumar Mishra be released on bail in FIR No.148 of 2023, under Section 147, 149, 364, 323, 308, 504, 506, 120B IPC, P.S. Kydganj, District Prayagraj on his furnishing a personal bond with two sureties of Rs.25,000/- each to the satisfaction of court concerned with the following conditions:
(a) The applicant shall execute a bond to undertake to attend the hearings;
(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and
(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
Order Date :- 19.12.2023
nishant
