Brahmadatt vs State Of U.P.
2023 Latest Caselaw 16092 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

1
 
Neutral Citation No. - 2023:AHC:111600
 
Reserved on 11.04.2023
 
Delivered on 22.05.2023
 

 
Court No. - 77
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9110 of 2021
 
Applicant :- Brahmadatt
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Satya Prakash Pandey,Raj Kishor Pandey
 
Counsel for Opposite Party :- G.A.,Chandra Prakash Tiwari
 

 
Hon'ble Raj Beer Singh,J.

1. Heard Sri G.S. Chaturvedi, learned Senior Advocate, assisted by Sri Satya Prakash Pandey and Sri Raj Kishor Pandey, learned counsel for the applicant, Sri I.K. Chaturvedi, learned Senior Advocate, assisted by Sri Chandra Prakash Tiwari, learned counsel for the informant and Sri Rajesh Mishra, learned A.G.A., assisted by Sri Abhijit Mukherjee and Sri Abhishek Srivastava, Brief Holders for the State.

2. The present bail application has been filed by the applicant in case crime No. 234 of 2020, under Sections 387, 120-B, 504, 506, 306 IPC & Section 8/12 of Prevention of Corruption Act, police station Kabrai, District Mahoba with the prayer to enlarge the applicant on bail.

3. The informant, namely, Ravikant Tripathi has lodged the first information report on 11.09.2020 against Manilal Patidar, the then Superintendent of police, Mahoba, Devender Shukla, the then SHO of PS Kabrai (Mahoba), Suresh Soni, Brahmdatt (applicant) and some subordinate police officials, alleging that his brother Indrakant Tripathi (hereinafter referred to 'the deceased') was partner in 'R.J.S. Crusher' and earlier he was associated with 'Maa Kali Associates' and 'I.P. Traders' and his firm was having the licence of sale and purchase of explosive substances. Another dealership of explosive substance was with 'Suraya Chemical' of Suresh Soni and 'Ajay Enterprises' of Brahmdutt (applicant). Co-accused Suresh Soni and applicant-accused Brahmdutt were having a liaison with the then Superintendent of Police Manilal Patidar (hereinafter referred to 'the then S.P.') and they used to pay Rs. 6 lacs per month to the then S.P.. In the month of June, 2020, the then S.P. made demand for illegal gratification of Rs. 6 lacs from the deceased but the deceased expressed his inability, due to which, the then S.P. along with his subordinate police officials has threatened the deceased to implicate him in false cases and to ruin his life. In the month of June, July, 2020, the then S.P. forcibly extorted Rs. 6 lacs from the deceased but after that deceased has refused to pay any further amount. The then S.P. got the deceased threatened by the Station House Officer, police station Kabrai and Suresh Soni. On 03.09.2020, the deceased went to the office of the then S.P. and told that his partners have already closed the business of explosive substance and he has also suffered huge losses and thus, he is unable to pay any amount. On this, the then S.P. threatened that he would get him into the jail and he would get him murdered in a manner, which would look like a suicide and that Suresh Soni, financier, is also with him. Due to continuous threats of the then S.P. and SHO of the police station, the deceased became perturbed. On 05.09.2020, the deceased sent a letter to the Chief Minister, U.P. Government, and that a complaint was also made viral on face-book and on other means of social media. Due to these acts, the then S.P. became more hostile towards the deceased and he started getting the deceased threatened from his subordinate police officials, that he would be implicated in false cases and he would also be get killed. On 07.09.2020 at 12:00 noon and on 08.09.2020 at 10:00 AM, deceased made his video viral saying that it may be possible that he would not be alive by tomorrow (next day), as the then S.P. has threatened to kill him and he is making demand of Rs. 6 lacs per month from him and he is unable to pay the same. As this message has gone viral, the deceased started getting more threats. On 08.09.2020, the deceased informed that on 09.09.2020 at 11:00 AM, he would be organizing a press conference at 'R.J.S. Granite' and would show each and every evidence of corruption being done by the then S.P., Mahoba. After that the then S.P., SHO Kabrai Devendra Shukla and some of their subordinate police officials and accused Suresh Soni and applicant-accused Brahmdutt, after hatching a conspiracy, made an attempt to get the deceased killed by firing. On 08.09.2020 at 2:30 PM, the deceased was found lying in injured condition in his car no. UP95-N-2900 on Kabrai-Banda road. On the basis of information from some passers-by, the deceased was sent to government hospital, Mahoba. On information, the informant also reached there. Due to serious condition, the deceased was referred to Kanpur and there doctors told that deceased has sustained a bullet at neck and he is on ventilator. It was also alleged that due to the acts and conduct of the then S.P. and his subordinate police officials, Suresh Soni and applicant-accused Brahmdutt, an atmosphere of fear has prevailed in the entire area.

4. The first information report was registered on 11.09.2020 at 19:49 hours, under Sections 387, 307, 120-B IPC and Section 7/13 of Prevention of Corruption Act at police station Kabrai, district Mahoba. Initially investigation was taken by Sri Raj Kumar Pandey, Dy. S.P. On 13.09.2020, the deceased succumbed to injuries and thus, section 302 IPC added. On 14.09.2020, an Special Investigation Team (SIT) was constituted for investigation of this case. During investigation, on the basis of Ballistic report dated 24.09.2020, the Investigating Officer has converted the case from Sections 302/307 IPC to Section 306 IPC along with sections 387/120-B/504/506 IPC and Section 7/13 of P.C. Act. It appears that during investigation, police found that deceased has committed suicide by firing bullet at himself, due to the continuous demand of illicit gratification and threats by the accused persons.

5. As per postmortem report, the cause of death of deceased is shock and septicaemia due to firearm injury. The deceased has sustained following ante-mortem injuries:-

"(i) L.W. size about 0.5 x 0.5 cm over 2.0 cm below C-7 cervical bone deep. C yellowish discharge blackening around the margins converted.

(ii) L.W. size about 3.0 x 2.0 cm over 2.5 cm above medial end of rt. Clavicle C yellowish discharge.

(iii) Injury no. 1 is commanding to injury No 2 between

-C7 and TI vertebra.

-Muscle and trachea and esophagus lacerated laterally."

6. It has been argued by Sri G.S. Chaturvedi learned Senior Advocate appearing for the applicant-accused that the applicant-accused is innocent and he has been falsely implicated in this case. It was submitted that applicant was a simple businessman doing his business and he was not in a position to extend threat to deceased. The allegation that applicant was in hand and glove with the then S.P. Mahoba, is wholly false. Referring to complaint made by the deceased to the Chief Minister of State of U.P. and the complaint published by the deceased on face-book, it was submitted that the deceased himself has stated that applicant was also paying bribe to the then S.P. Mahoba. The applicant has no motive at all to pressurize the deceased to pay illicit money to the then S.P. and that he was not going to be benefited from any such payment of money to the S.P. The pistol of applicant was seized by the police during investigation and as per F.S.L. report it is not connected with the bullets fired at the deceased. No such evidence has been collected during investigation to show that deceased was ever harassed or tortured by the applicant or that deceased was perturbed with the behaviour and conduct of applicant. No such evidence has been collected that applicant used to visit the residence of then S.P. The applicant is not a public servant and thus, the provisions of Prevention of Corruption Act are not attracted against applicant. Referring to statements of witnesses, it was submitted that there is no credible evidence that applicant was involved in harassment or torture of deceased or that he was pressurizing the deceased to fulfil the illicit demand of the then S.P.

7. It was further submitted that as per postmortem report, the deceased has sustained one lacerated wound of 0.5 x 0.5 cm below C-7 cervical bone deep, blackening around margin (inverted), one lacerated wound size 3.0 x 2.0 cm over 2 cm above medial end of right clavicle blade and the injury No.1 is communicating to injury No. 2. Though, as per the FSL report dated 18.09.2020, it is not clear as to whether the wound of entry was on the front or on the back of deceased but the above referred characteristics shown in postmortem report clearly show that fire arm entry wound is on the back of neck while wound of exit is on the front side and thus it was not possible for the deceased to fire at himself at back of his neck and therefore prima facie it is case of murder and not of suicide. It is not the case of prosecution that the deceased was murdered or that the applicant was involved in murder of deceased, rather the case of prosecution is that applicant along with co-accused persons, was involved in extortion and threatening the deceased and forcing him to pay money for the then S.P., and thereby abetted the deceased to commit suicide. Referring to these facts, it was submitted that case against applicant is that the applicant has abetted the deceased to commit suicide but as stated above, prima facie it is case of murder. Once it is found that it is case of murder, thus, no offence under Section 306 IPC is made out against the applicant.

8. Learned Senior Advocate further submitted that even considering the alleged complaint made by the deceased to the Chief Minister and his posts on face-book of the deceased and the statements of witnesses, recorded during investigation, the ingredients of offence under Section 306 IPC are not made out. The prosecution has suppressed the genesis of the incident. The FIR was not lodged for three days. The licensed pistol of deceased, used in the incident, as well as other belongings of deceased, were removed from the spot of incident. The alleged pistol was handed over by the informant to the police after 11 days of incident. During that period, the Investigating Officer did not try to search the said pistol. The informant has not clarified that how and when he came into possession of said pistol. As per FSL report, the empty cartridge (EC-1) was fired from the pistol but the bullet 7.65 mm 9 marked as EB-1) could not be matched with pistol of deceased or with pistols of accused persons seized by the police during investigation. The statement of Dipendra Singh, who was 'Muneem' (cashier) of deceased, has been recorded after one month of incident and no explanation for this delay has been shown. Referring to facts of the matter and statements of witnesses, recorded during investigation, it was submitted that whole prosecution story is surrounded with suspicion and mystery and genesis of the incident was deliberately concealed and that there is no credible evidence against the applicant. Lastly, it has been submitted that the applicant-accused is languishing in jail since 03.10.2020, having no criminal history, and that in case, applicant-accused is enlarged on bail, the applicant-accused will not misuse the liberty of bail.

9. Per contra, Sri I.K. Chaturvedi, learned Senior Advocate appearing for the informant has opposed the bail application and argued that there is sufficient evidence to show the involvement of the applicant in the incident. It was submitted by the learned senior Advocate that the police have not conducted investigation properly. It was submitted that it is case of murder and that it was illegally converted from Section 302 IPC to Section 306 IPC. The Investigating Officer has recorded false statements of some witnesses in order to show that it is a case of suicide. After incident, the informant got the deceased admitted in the hospital. The delay in lodging the first information report took place as the informant was busy in treatment of deceased and thus, delay has been duly explained. Referring to postmortem report of deceased, it was stated that nature of injury of deceased shows that it was not possible for the deceased to cause the said injury himself by firearm and thus, it was a case of murder. In photo of the car of deceased, no mark of bullet injury has been shown in the driving seat of the car. Referring to facts of the matter, it was submitted that the deceased was repeatedly being pressurized and coerced to fulfill the demand of illegal gratification. It was submitted that in reply to the face-book note of deceased, the then S.P. has to call a press conference, which goes to show the magnitude of threat that was being faced by the deceased. The deceased has recorded his version showing serious apprehension of being killed by the then S.P. The incident in question is very serious and sensational. The deceased was not involved in any mining, rather he was doing business of explosive and running a stone crusher and he was issued a character certificate by the office of concerned District Magistrate. In his statement, recorded, under Section 161 Cr.P.C., informant has clearly stated that when his brother (deceased) refused to fulfill the alleged demand of Rs. 6 lacs per month, the applicant along with some police officials and has threatened the deceased. Learned senior counsel further submitted that there is evidence that applicant was having a liaison with the then S.P. and that he was in hand and glove with the then S.P. in extortion of money from the deceased and other businessmen. On 05.09.2020, the deceased has made a complaint to the Chief Minister, State of U.P. and in that complaint also, it was mentioned that applicant along with co-accused persons was also threatening the deceased to fulfil illicit demand of Rs.6,00,000/- per month, made by the then S.P. Similarly, in his statement under Section 161 Cr.P.C. as well as in supplementary statement, the informant has named the applicant making allegations against him. In the complaint published by the deceased on facebook also, the applicant was named by the deceased. Referring to statement of witnesses, including that of Dipendra Singh, who was working as cashier of deceased, it was submitted that there is sufficient evidence to show that applicant was actively involved in the alleged racket of extortion, which resulted into death of deceased.

10. Learned Senior counsel has referred statements of Dipendra Singh, Bablu Maharaj and Purushottam Soni as well as statements of other witnesses and documents on record and submitted that there are serious allegations against applicant and that in case he is granted bail, he may threaten the witnesses and temper with the evidence and thus, the applicant-accused is not entitled for bail.

11. Learned Additional Government Advocate submitted that there are serious allegations against the applicant. There is evidence that applicant was engaged in the extortion racket. The applicant-accused is named in the first information report. He was also named by the deceased in the complaint sent by the deceased to the Chief Minister. Referring to the statement of the informant and other witnesses, it was submitted that applicant was actively involved extortion racket. The informant has clearly stated that the applicant has threatened the deceased and pressurized him to fulfil the illicit demand of the then S.P.. During investigation, S.I. Jitendra Kumar has made a statement that co-accused Devendra Shukla was pressurizing him to implicate the deceased in the gambling case. It was submitted that after death of deceased in hospital, Section 302 IPC was added but in view of subsequent report of the Joint Director, State Medico Legal Cell, it has emerged that point of firearm entry wound is below the chin and thus, it was a case of suicide and on the basis of the FSL report, the case was converted from Section 302 IPC to Section 306 IPC. It was stated that whether the case falls under Section 302 IPC or Section 306 IPC, it may be considered by the trial court at appropriate stage but there is sufficient evidence to show the complicity of the applicant.

12. Learned AGA has also referred statement of Dipendra Singh, who was working as Muneem/Clerk of deceased, as well as the statements of Bablu Maharaj and Purushottam Soni, who were partners in the firm of deceased, and submitted that they have also stated that the applicant was involved in the extortion racket and he has also threatened the deceased and asked to fulfil the illicit demand of Rs 6 lacs. Referring to facts of the matter and statements of witnesses, recorded during investigation, it was submitted that there are serious allegations against the applicant.

13. I have considered the rival submissions and perused the record.

14. Before proceeding further it may be observed that in case of State through C.B.I vs. Amaramani Tripathi- [(2005) 8 SCC 21], the Apex Court held that a Court granting bail to an accused, must apply its mind and go into the merits and evidence on record and determine whether a prima-facie case was established against the accused. It was held that the seriousness and gravity of the crime was also a relevant consideration. The Hon'ble Apex Court has, in a catena of judgments, outlined the considerations on the basis of which discretion under Section 439 CrPC has to be exercised while granting bail. In landmark judgment of Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118, the Apex Court has laid down various parameters which must be considered while granting bail. The Court held as follows:

"24. ...Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."

15. It was held that the above factors do not constitute an exhaustive list. The grant of bail requires the consideration of various factors which ultimately depends upon the specific facts and circumstances of the case before the Court. There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, inter-alia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused.

16. It is also to be kept in view that at the stage of granting bail, the Court is not required to enter into a detailed analysis of the evidence in the case. Such an exercise may be undertaken at the stage of trial. In case of Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the Court held as under:

"9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

xxx xxx xxx

10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal....."..

17. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, the court followed the observations made in Prasanta Kumar Sarkar (supra) and held as follows:

"17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment..."

18. A three Judges' Bench of the Apex Court in Jagjeet Singh & Ors. V. Ashish Mishra @ Monu & Anr. in Criminal Appeal No. 632 of 2022, has reiterated the factors that the Court must consider at the time of granting bail under Section 439 CrPC, as well as highlighted the circumstances where this Court may interfere when bail has been granted in violation of the requirements under the above-mentioned section. The Court observed as follows:

"28. We may, at the outset, clarify that power to grant bail under Section 439 of CrPC, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court of the Sessions Court must grant bail after the application of a judicial mind, following well established principles, and not in a cryptic or mechanical manner."

19. In case of Kalyan Chandra Sarkar V Rajesh Ranjan alias Pappu Yadav & Anr. - [(2004) 7 SCC 528], the Court held that although it is established that a Court considering a bail application cannot undertake a detailed examination of the evidence and make an elaborate discussion on the merits of the case, the Court is required to indicate the prima facie reasons justifying the grant of bail.

20. Keeping aforesaid legal position in view, in the instant case it appears from record that the deceased was partner in 'R.J.S. Crusher' and he was also associated with 'Maa Kali Associates' and 'I.P. Traders'. His firm was having the licence of sale and purchase of explosive substances. As per prosecution version, earlier the deceased was paying Rs 6 lacs per month to the then SP, but when he expressed his inability to pay any further amount by saying that he is no more doing the business of explosive substances, the accused persons, including applicant started threatening him. He was continuously being harassed and threatened by the then S.P by himself as well as by his subordinate police officials. On 05.09.2020, the deceased has sent a complaint to the Chief Minister, U.P. Government, and that a complaint was also made viral on face-book and thereafter the then S.P. increased the harassment of deceased through his sub-ordinates, co-accused Suresh Soni and the applicant. On 07.09.2020 the deceased has posted a video saying that it may be possible that he would not be alive by next day, as the then S.P. was threatening to kill him, and he was demanding Rs. 6 lacs per month from him. Deceased has also told that he would organize a press conference on 09.09.2020 to show the evidence of corruption being done by the then S.P. and his subordinate police officials and other co-accused persons. On the same day i.e. 08.09.2020 at 2:30 PM, he was found in injured condition in his car and he has suffered bullet injuries. It would be interesting to note that the case of applicant as well as of the informant is that in view of nature of injuries, as discussed above, it is a case of murder and not of suicide and the police did not investigate the case properly.

21. The essence of prosecution version against applicant is that applicant was in hand and glove with the then S.P., Mahoba and he was involved in harassment and torture of deceased in order compel him to pay Rs 6 lacs per month to the S.P./ co-accused Manilal Patidar. It was alleged that the then S.P., Mahoba was pressurizing the deceased to pay Rs.6,00,000/- per month as illegal gratification to him and that applicant and co-accused Suresh Soni, along with the SHO of police station Kabrai and constable Arun Kumar, were pressurizing the deceased to pay the said amount to the then S.P and they had threatened the deceased that in case he did not fulfil the said demand, he would be falsely implicated in false criminal cases and he may also be murdered. In this connection statement of informant as well as statement of Dipendra Singh, who was working as Muneem/Cashier of deceased, and statements of Bablu Maharaj and Purushottam Soni, who were partners in the firm of deceased, were referred, wherein, it was alleged that along with co-accused persons, the applicant-accused has also threatened that in case the demand of Rs 6 lacs is not fulfilled, he would be falsely implicated in false cases but there is no such allegation that applicant was ever paid any amount or he demanded any amount from the deceased. Being a simple businessman, he has no authority to falsely implicate the deceased in criminal cases. The applicant is stated a businessman of the same area. He was not holding any public post or any other important political post. It is also not the case of prosecution that applicant has any criminal background or that he was having terror in the area. He was not going to be benefited by the fulfilment of alleged demand of the then S.P.. In view of these facts and circumstances, how the applicant was in position to threat and coerce the deceased to fulfil the demand of the then S.P., is a question to ponder over. It also appears from the complaint made by the deceased and his note posted on face-book as well as from the statement of co-accused persons, that applicant-accused himself was paying illicit money to the then S.P.. The case of prosecution is that acts of applicant-accused and co-accused persons amounts to abetment of deceased to commit suicide and resultantly, deceased committed suicide and the contention raised on behalf of applicant is that the act and mischief of applicant-accused does not fall within the ambit of abetment of suicide. The applicant is stated in jail since 03.10.2020 and thus, the applicant-accused has already undergone custody of about two and a half years and that applicant has no criminal antecedents. In view of the above-stated facts of the matter, the case of applicant appears on different footing from that of the co-accused Arun Kumar and Devendra Singh, who were working in police. There is no material to show that the applicant may temper with evidence or he may flee from justice.

22. Considering the submissions of learned counsel for the parties, nature of accusations, period of custody and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, the Court is of the view that a case for bail is made out. Hence, the bail application is hereby allowed.

23. Let the applicant Brahmadatt involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned subject to the following conditions:

i. The applicant will not tamper with the evidence during trial.

ii. The applicant will not pressurize/intimidate the informant or any other prosecution witnesses.

iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

iv. The applicant will not try to contact, threat or otherwise influence the informant or any of the witness of the case.

24. In case of breach of any of the above condition, the court concerned shall be at liberty to cancel the bail of applicant, in accordance with law.

Order Date :- 22.5.2023

Anand