Mulayam Pal vs State Of U.P.
2023 Latest Caselaw 15773 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:109559
 
Judgment Reserved on 15.5.2023 
 
Deiivered on 19.5.2023
 
Court No. - 76
 

 
1. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11099 of 2023
 

 
Applicant :- Mulayam Pal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sarvjeet Kumar,Subhash Chandra Upadhyay,Vikrant Pandey
 
Counsel for Opposite Party :- G.A.,Deepak Singh Patel,Ram Autar Verma,Sakshi Patel,Shiv Naresh
 

 
2. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2159 of 2023
 

 
Applicant :- Dinesh Kumar Pasi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rahul Dev Singh,Abhiuday Mehrotra,Aditya Yadav,Sharve Singh
 
Counsel for Opposite Party :- G.A.,Ram Autar Verma,Sakshi Patel,Shiv Naresh
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Vikrant Pandey on behalf of applicant in leading bail application no. 11099 of 2023, Sri Aditya Yadav, on behalf of applicant in bail application no. 2159 of 2023, Sri Ram Autar Verma, learned counsel for informant and Sri. Sunil Kumar Srivastava, learned A.G.A.

2.The applicants have approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.0191 of 2022, under Sections 147, 506, 302, 201, 34, 120-B of I.P.C., Police Station-Soraon, District-Prayagraj after rejection of their Bail Applications vide order dated 12.9.2022 and 4.11.2022 respectively passed by learned Sessions Judge, Prayagraj.

3. Both the cases arises out of same case crime number, therefore, with the consent of learned counsel for parties, are decided by this common judgment.

4. Prosecution story is extracted from an order dated 20.3.2023 passed by co-ordinate Bench of this Court in Criminal Misc. Bail Application No.49459 of 2022, Brahmdeen Vs. State of U.P.:

"As per prosecution story, some unknown person is said to have called at the mobile No.7880575774 of the father of the informant on 15.04.2022 at about 12:00 PM whereby the father of the informant is stated to have gone on his motorcycle No. UP 70 CM 3531 and had stated to his son that he shall return by evening. When he did not return by the night and the phone of the father of the informant was found switched off, after frantic search at about 6:00 AM in the morning of 16.04.2022 his dead body was found near a nala outside the village Sarai. The dead body was sent for autopsy by the police, thereby the applicant had come to the police station and lodged the FIR stating that he suspected the applicant, who happens to be his uncle, and his other family members to have committed the said offence as they had some land dispute and had threatened the deceased about one week before the date of occurrence."

5. Learned counsel for applicant appearing on behalf of Mulayam Pal submits that in the present case during investigation, co-accused (applicant) in Criminal Misc. Bail Application No.- 2159 of 2023, was arrested by the police on 19.4.2022 and motorcycle of deceased and his phone were recovered on his pointing out.

6. Learned counsel further submits that name of applicant (Mulayam Pal) was disclosed for the first time in the confessional statement of co-accused Dinesh Kumar Pasi as well as co-accused Brahmdeen. It was alleged that co-accused Brahmdeen had a dispute with his brother Ram Babu Patel (deceased) and due to this there was exchange of hot talks between them on many occasions.

7. Learned counsel further submitted that co-accused Brahmdeen was acquainted with co-accused Dinesh Kumar Pasi and they hatched a conspiracy along with co-accused including other applicant (Mulayam Pal) and it was also agreed that co-accused Brahmdeen will pay Rs.2 lakhs and the present applicants and co-accused executed the plan and caused death of deceased.

8. Learned counsel further submitted that motive was assigned to co-accused Brahmdeen who has already been granted bail considering the factor that his name surfaced in the statement of arrested co-accused and said statement was inadmissible in terms of Section 26 of Indian Evidence Act.

9. He further submitted that initially F.I.R. was lodged against 12 named accused, but charge-sheet has been filed against above referred applicants and co-accused Brahmdeen who has already been granted bail and no specific role has been assigned to the applicants.

10. Sri Aditya Yadav, learned counsel appearing on behalf of Dinesh Kumar Pasi has adopted above referred submissions and submitted that evidence against applicant is only his confessional statement. There is no evidence for committing alleged crime and that he was paid amount by co-accused Brahmdeen. Motive was assigned to co-accused Brahmdeen only. There is no evidence of alleged offence of hatching conspiracy. Applicants are languishing in jail since 18.4.2022 and 17.5.2022 respectively. There is no likelihood of early disposal of trial and the applicants undertake that if enlarged on bail, they will never misuse their liberty and will co-operate in the trial.

11. Above submissions are opposed by learned counsel for informant and learned A.G.A. that there is an evidence against present applicants of last seen as well as CCTV footage. Investigating Officer has also collected CDR reports which indicates that both the applicants and other co-accused were in touch with each other during relevant time. However, it is not disputed that co-accused Brahmdeen who has been assigned the motive that his terms with his brother (deceased) was not cordial and he hatched conspiracy with present applicants and they executed plan to eliminate the deceased, has already been granted bail.

12. LAW ON BAIL-A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is not need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

13. In the present case, it transpires that evidence against the present applicants and co-accused are circumstantial in nature. Alleged motive is assigned only to co-accused Brahmdeen who has already been granted bail by co-ordinate Bench of this Court. Role assigned to present applicants is of hatching conspiracy along with co-accused Brahmdeen and later on they executed the same and caused death of brother of co-accused Brahmdeen.

14. Evidence collected during investigation appears to be only confessional statement of applicant (Dinesh Kumar Pasi) who has disclosed the name of other applicant (Mulayam Pasi) and that both of them have participated in the crime.

15. Recovery of a motorcycle and phone of deceased does not appear to be in the presence of independent witnesses as well as at this stage only on the basis of some CDR reports and CCTV footage it does not prima-facie directly indicate applicants involvement in crime and also the circumstances prima-facie do not connect with each other to complete a chain. In these circumstances, both the applicants who are similarly situated have made out a case for bail.

16. Let the applicants Mulayam Pal and Dinesh Kumar Pasi, involved in aforesaid case crime number be released on bail on their furnishing personal bonds with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the date 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.

(iii) The applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse their liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.

(iv) The trial court may make all possible efforts/endeavour to conclude the trial expeditiously preferably within a period of six months, after the release of applicants, if there is no legal impediment.

(v) Applicants will have to appear on each and every date before learned Trial Court and any application for exemption of their appearance on vague grounds could be a ground for cancellation of bail by learned Trial Court without even issuing notice.

17. The bail applications are allowed.

18. It is made clear that observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :-19.5.2023

SB