Ajay Singh @ Ajay Mardah vs State Of Up
2024 Latest Caselaw 15790 ALL

Allahabad High Court

Ajay Singh @ Ajay Mardah vs State Of Up on 7 May, 2024

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Reserved
 
Neutral Citation No. - 2024:AHC:81381
 
Court No. - 68
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5694 of 2024
 
Applicant :- Ajay Singh @ Ajay Mardah
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Suraj Kumar Singh
 
Counsel for Opposite Party :- G.A.,Upendra Upadhyay
 

 
Hon'ble Raj Beer Singh,J.
 

1. Heard Sri Manish Tiwary, learned Senior Advocate, assisted by Sri Suraj Kumar Singh, learned counsel for the applicant, Sri Upendra Upadhyay, learned counsel for the informant and learned A.G.A. for the State.

2. The present bail application has been filed on behalf of the applicant in S.T. No. 81of 2018, case crime No. 378 of 2015, under Section 147, 148, 149, 302, 120-B IPC, police station Chaubeypur, District Varanasi with the prayer to enlarge the applicant on bail.

3. The informant has lodged the first information report against 4-5 unknown persons, alleging that on 04.12.2015 at 07:15 AM while his father Ram Bihari Chaubey was reading newspaper in his shanty (Madai), two boys trespassed into the house and fired bullets at Ram Bihari Chaubey. After hearing sound of firing, informant came there and saw that two boys were going towards the gate and three more boys were standing at the gate and they all ran away on two motorcycles. Ram Bihari Chaubey was taken to the hospital, where he was declared dead.

4. It appears that during investigation, involvement of applicant and co-accused persons was revealed. The applicant applied for bail and he was granted bail vide order dated 23.10.2017 passed by the learned Sessions Judge, Varanasi. The State of U.P. has filed an application for cancellation of bail but that application was rejected vide order dated 25.07.2018 passed by the learned Additional Sessions Judge, Court No. 8, Varanasi. The informant has filed an application for cancellation of bail before this Court, wherein by order dated 10.12.2019 the bail order dated 23.10.2017 was set aside and bail granted to the applicant was cancelled. The applicant has challenged the order dated 10.12.2019 before the Hon'ble Apex Court by filing SLP (Criminal) No. 1322 of 2020, wherein by order dated 17.02.2020 the said SLP was dismissed, however, petitioner (applicant herein) was granted liberty to file an application for regular bail before the concerned trial court after trial begins. It was further directed that if such an application is filed by the petitioner-applicant, the trial court shall consider the same in accordance with law. Thereafter applicant has filed a fresh bail application in the court of Sessions Judge, Varanasi, which was dismissed vide order dated 21.03.2023. Thereafter, the instant bail application has been filed before this Court.

5. It has been argued by learned senior Advocate appearing for the applicant that the applicant-accused is innocent and he has been falsely implicated in this case. Applicant is well known to the informant since long and if applicant might have involved in the incident, he might have been nominated in the first information report but applicant was not named therein. The applicant was not named by the informant in his statement under section 161 CrPC. During investigation, on 24.12.2015 the second statement of informant and his brother was recorded but they have not named the applicant. On 15.03.2016 the Investigating Officer recorded the statement of Amar Nath Chaubey / son of deceased for second time and he has stated that at the time of incident he was in Gurugram. By 10.08.2016 the complicity of any of the accused has not come into light. Later on investigation was transferred to Crime Branch. During investigation it has transpired that deceased was looking after the work of Brijesh Singh and said Brijesh Singh was having enmity with one BKD, so BKD can commit murder of deceased. Statement of eye witness Mohan Lal Sonkar was recorded but he has not disclosed complicity of the applicant. It was further submitted that during investigation, 7th statement of informant and his brother was recorded, wherein for the first time they have disclosed the complicity of the applicant in the commission of crime after 16 months of the incident. These witnesses have also stated that Sushil Singh, MLA has hatched a conspiracy with applicant and other co-accused persons and murder of deceased was committed in pursuance of the said conspiracy. The prosecution version that the photographs of applicant and co-accused Sunny Singh were shown to Guddu Rajbhar and Smt. Renuka Chaubey and they have identified them, is wholly false. On 16.04.2017 the test identification parade was conducted, wherein eye witness Mohan Sonkar has allegedly identified the co-accused but no reliance can be placed upon such identification, which was conducted after 16 months of the incident. It was submitted that there is no credible evidence to show the involvement of applicant but the Investigating Officer has submitted charge-sheet. Further, similarly placed co-accused Ashutosh Singh @ Sunny Singh has already been granted bail by Co-ordinate Bench of this Court, copy of which is available on record.

6. It was further submitted that meanwhile brother of first informant, namely, Amar Nath Chaubey has filed a writ petition before this Court for investigation of the case by CBI, which was disposed of vide order dated 17.05.2018 and it was directed that investigation be concluded expeditiously and report will be submitted before the competent court within a period of eight weeks. Against the order dated 17.05.2018, the brother of informant has filed an SLP vide No. 6951 of 2018 before the Hon'ble Apex Court, wherein vide order dated 14.12.2020 a special investigation team was constituted for investigation of the present case in respect of non-charge-sheeted accused persons. As the proceedings of the case had been stayed by the Hon'ble Apex Court, an impleadment application was filed by the applicant before the Hon'ble Apex Court in the above-referred SLP, wherein by order dated 28.11.2022 it was observed by the Hon'ble Apex Court that the order dated 17.02.2020 shall not stand in the way of trial court while considering the application for bail, which may be filed by the applicant. The applicant has filed a bail application before the Sessions Judge, Varanasi, which was rejected.

7. Referring to the facts of the matter, it was submitted that there is no credible evidence against the applicant and in fact he has been made an escape goat. Before grant of bail, applicant has undergone detention of about seven and a half months and after cancellation of bail applicant is in jail since 06.01.2020. Criminal history shown against the applicant has duly been explained in the bail application. Referring to the facts of the matter, it was submitted that in view of the aforesaid facts, applicant deserves to be enlarged on bail and that in case applicant is enlarged on bail, the applicant will not misuse the liberty of bail.

8. Learned A.G.A. and learned counsel for the informant have opposed the prayer for bail and argued that incident in question is quite heinous. The father of informant was murdered at his house by making indiscriminate firing. There is criminal history of 21 cases against the applicant and in one of the case he has been convicted under Section 148, 302/149 IPC. The bail earlier granted to the applicant by the Sessions Judge, Varanasi was cancelled by this Court vide order dated 10.12.2019 and against the order dated 10.12.2019, an SLP was filed, which was also dismissed. While dismissing the SLP, the Hon'ble Apex Court has observed that applicant is granted liberty to file an application for regular bail before the concerned trial court after trial begins but trial has not yet been started and thus, at this stage applicant is not entitled to be released on bail. It was submitted that it was a political murder and the applicant is a contract killer and he was hired by Sushil Singh for committing murder of deceased. Smt. Renuka Chaubey, wife of informant, has identified the applicant as one of the assailant. The applicant is a notorious criminal, who has enjoyed clout of the politicians and in case he is granted bail, he may threaten the informant and witnesses of the case and he may flee from justice.

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

10. 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."

11. 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 [see State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21].

12. 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....."..

13. 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 non­application 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..."

14. A three Judges' Bench of the Apex Court in Jagjeet Singh & Ors. V. Ashish Mishra @ Monu & Anr, 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."

15. 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.

16. Keeping the aforesaid legal position in view, in the instant case it may be observed that applicant is not named in the first information report and he was also not named in the earlier statements of informant and his other family members but in subsequent statements, the name of applicant has figured as one of the assailant of the deceased. In the alleged incident, deceased was murdered at his house by firing several rounds of bullets. As per prosecution version that the murder of deceased has been committed due to political rivalry and applicant is a shooter and contract killer. Earlier bail was granted to the applicant but same was cancelled by this Court. During investigation, applicant was identified by the wife of informant, who has seen the applicant at the spot. Applicant has criminal history of 21 cases, including several heinous offences. While disposing the above-referred SLP, the Hon'ble Apex Court has given liberty to the applicant to file an application for regular bail before the concerned trial court after trial begins. It has been shown that charges have been framed against the applicant but no witness has been examined so far. Co-accused Ashutosh Singh @ Sunny Singh has been granted bail by the Co-ordinate Bench of this Court but it appears from his bail order that he has no criminal antecedents, whereas long criminal history has been shown against the applicant and he is previous convict of a murder case. The second bail application of co-accused Nagendra Singh @ Raju Singh has already been rejected bail by Co-ordinate Bench of this Court.

17. Considering submissions of learned counsel for the parties, nature of accusations, and all attending facts and circumstances of the matter, without expressing any opinion on the merits of the case, at this stage, no case for grant of bail is made out.

18. Accordingly, the instant bail application filed on behalf of applicant Ajay Singh @ Ajay Mardah is rejected.

19. However if no substantial progress is made in the trial within a period of one year from today, the applicant would be at liberty to file a fresh bail application in accordance with law.

Order Date :- 07.05.2024

Anand