Allahabad High Court
Vishnu Mishra vs State Of U.P. on 14 May, 2024
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Neutral Citation No. - 2024:AHC:86536
Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18113 of 2023
Applicant :- Vishnu Mishra
Opposite Party :- State of U.P.
Counsel for Applicant :- Reema Pandey,Saurabh Raj Srivastava,Sr. Advocate
Counsel for Opposite Party :- Abhishek Kumar Yadav,G.A.
Hon'ble Raj Beer Singh,J.
1. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Saurabh Raj Srivastava, learned counsel for the applicant and Sri Sanjay Kumar Singh, learned A.G.A. for the State and perused the material brought on record.
2. The present bail application has been filed on behalf of the applicant in Case Crime No. 0230 of 2022, under Sections -3, 7, 25 Arms Act, Police Station - Gopiganj, District - Sant Ravidas Nagar (Bhadohi) with the prayer to enlarge the applicant-accused on bail.
3. According to prosecution version, during investigation of Crime No. 379 of 2020, under Sections - 376-D, 342, 506 I.P.C., police received an information that one Vishnu Mishra, who is accused in that case, is present at the house of Chandan Tiwari at Village - Anapur. On that information, police have arrested Chandan Tiwari and one 9 mm pistol along with two cartridges was recovered from him. Chandan Tiwari disclosed that Vishnu Mishra is present at his house and thereafter a raid was conducted at the house of Chandan Tiwari but Vishnu Mishra has thrown his pistol from his hand and ran away. That pistol of 9 mm was seized by the police. In that connection a case was registered against Chandan Tiwari and Vishnu Mishra on 07.09.2021 vide crime No. 244 of 2021, under Section - 216 I.P.C. and 3/5 Arms Act. Later on, the applicant-accused was arrested in Case Crime No.273 of 2020 and 379 of 2020 and court has granted police custody remand of the applicant. During police custody remand, applicant-accused Vishnu Mishra has disclosed that he concealed some arms and he can get recovered the same. On that disclosure on 04.08.2022 the applicant was taken by the police to the petrol pump at Amva and from there, five cartridge 9 mm, one pistol 9 mm, 4 magazines, 375 cartridges and one AK-47 rifle were got recovered by the applicant. Regarding this recovery, the present case was registered vide crime No. 0230 of 2022, under Sections -3, 7, 25 Arms Act.
4. Learned Senior Advocate appearing for applicant submitted that applicant is innocent and he has been falsely implicated in this case. There is no independent witness of the alleged recovery. The prosecution version that while police have reached at the house of Chandan Tiwari, applicant has thrown the pistol and ran away is wholly false and the same is quite improbable. There is nothing to show that the alleged place of petrol pump, from where alleged recovery was shown, was in possession of the applicant. The recovery of alleged arms and ammunition is wholly false and the same is not supported by any independent witness. Further, referring to alleged disclosure statement of applicant, it was submitted that alleged recovery can not be said to be effected in accordance with section 27 of Evidence Act and thus, the same cannot be relied upon. In this connection, learned Senior counsel has referred case of Subramanya V State of Karnataka AIR 2022 SC 5130 and Ramanand alias Nandlal Bharti V State of UP AIR 2022 SC 655.
5. It is further submitted that father of applicant has been M.L.A. for four times and this false case was registered against applicant due to political enmity to tarnish the image of father of applicant. Multiple civil and criminal litigations are pending between the family of applicant and one Krishna Mohan Tiwari and the instant case is fall out of the said enmity. The allegation that accused Chandan Tiwari was working as Security Guard for applicant is wholly false and baseless. In fact said Chandan Tiwari was brutally beaten by the police officials and consequently he has filed a writ petition before this Court regarding the atrocities. It was submitted that in fact applicant was arrested on 24.07.2022 from Pune by S.T.F. in connection with Case Crime No.379 of 2020 and thereafter he was falsely implicated in this case. Criminal history of 10 cases has been shown against applicant and that has duly been explained. Before this case, applicant has only criminal history of two cases and after this case, he was falsely implicated in eight more cases, which have duly been explained. Lastly it was submitted that applicant is languishing in jail since 24.07.2022 and in case applicant is enlarged on bail, he shall not misuse the liberty of bail.
6. Learned A.G.A. has opposed the prayer of bail and submitted that the weapons recovered from applicant are quite sophisticated. There is evidence that when the police have reached at the house of Chandan Tiwari, the applicant was present there and he has thrown the pistol and ran away. In Case Crime No. 379 of 2020, the applicant was absconding and process under Section 82 and 83 Cr.P.C. was issued against him. A reward of Rs. 25,000/- was also declared on arrest of applicant and later on that reward was enhanced to Rs.1 lakh. After arrest of applicant in Case Crime No. 273 of 2020, applicant was taken on police custody remand and at his instance one AK-47 riffle, four magazines, 375 cartridges of 7.62 mm, one pistol of 9 mm along and five live cartridges were recovered. Applicant was involved in several criminal cases and he has long criminal history. Alleged recovered AK-47 rifle was used in commission of murder pertaining to case crime No.111 of 2002. The F.S.L. report also supports that fact. Learned A.G.A. has referred averments of counter affidavit and submitted that there are serious allegations against the applicant and he had been involved in several criminal cases and applicant has long criminal history. It was further submitted that earlier applicant was granted bail in Crime No.0273 of 2020, under Sections - 323, 347, 387, 449, 506, 419, 420, 467, 468, 471, 474, 120-B I.P.C. and 66-C, 66-D I.T. Act vide order dated 20.04.2023, passed in Criminal Misc. Bail Application No.3726 of 2023 but that order was set aside by the Hon'ble Apex Court vide order dated 31.10.2023, passed in S.L.P. No.6981 of 2023 and matter was remanded back to this Court to decide the said bail application in the light of observations made by the Hon'ble Apex Court and thereafter that bail application was rejected by this Court vide order dated 30.01.2024. The recovery of A.K.-47 rifle indicates that applicant is a dreaded criminal belonging to a criminal gang and his father is having criminal history of 83 cases. Referring to facts of the matter, it was submitted that applicant is not entitled for bail.
7. I have considered the rival submissions and perused the record.
8. 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."
9. 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].
10. 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....."..
11. 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."
12. 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.
13. Keeping in view aforesaid legal position, in the instant matter, it may be seen that as per prosecution version, applicant was wanted in Case Crime No.379 of 2022, under Section- 376-D, 342, 506 I.P.C. and in that case he was absconding. On 07.09.2021, one Chandan Tiwari was apprehended by the police, who has disclosed that he has concealed applicant-accused Vishnu Mishra at his house. Said Chandan Tiwari was taken by the police to his house, where police saw that applicant is present there and he has thrown a 9 mm pistol on the floor and ran away. Regarding that recovery, a case was registered vide Crime No. 244 of 2021 at Police Station - Gopiganj, under Sections - 3/25 Arms Act and 216 I.P.C. It appears that later on applicant-accused was arrested in Case Crime No.273 of 2020 and 379 of 2020 and during police custody remand, applicant disclosed that he has concealed some weapons at petrol pump situated at Amva and he can get the same recovered. Consequently, he took the police to petrol pump at Amva and from there five cartridge 9 MM pertaining to Case Crime No.244 of 2021, one pistol 9 MM with four cartridge, one AK-47 rifle, four magazine, 375 cartridges of 7.62 bore were recovered at his instance. Though various contentions have been raised on behalf of applicant including that the alleged place of recovery is not in possession of applicant and there is no independent witness of alleged recovery and that applicant has been falsely implicated in this case due to political enmity but the recovered weapons, which includes an AK-47 rifle, are quite sophisticated and dangerous. Further, following criminal history has been shown against the applicant :-
Sr. No.
Case Crime No.
Section
Police Station
District
1.
688/2009
419/420/467/468 I.P.C.
Gopiganj
Bhadohi
2.
1141/2009
3/25 Arms Act
Gopiganj
Bhadohi
3.
273/2020
323/506/449/347/387/419/420/467/468/471/474/120-B and 66-C, D I.T. Act
Gopiganj
Bhadohi
4.
375/2020
174-A I.P.C.
Gopiganj
Bhadohi
379/2020
376-D/342/506 I.P.C.
Gopiganj
Bhadohi
6.
244/2021
216 I.P.C. and 3/25 Arms Act
Gopiganj
Bhadohi
7.
109/2022
3(1) U.P. Gangster Act
Gopiganj
Bhadohi
8.
230/2022
3/7/25 Arms Act
Gopiganj
Bhadohi
9.
12/2022
174-A I.P.C.
Jaitpura
Varanasi
10.
194/2021
147/149/307/323/392/452/504/506/511/120-B I.P.C.
Jaitpura
Varanasi
11.
265/2021
174-A I.P.C.
Gopiganj
Bhadohi
14. Though, up to some extent, criminal history of applicant has been explained. In Case Crime No. 379 of 2020, applicant-accused has been acquitted and in two cases prosecution was withdrawn by the State and in some cases application for discharge is pending. However, the fact that as per prosecution version, sophisticated and dangerous weapons, which include one AK -47 rifle, one pistol of 9 MM and huge quantity of ammunition, were recovered at instance of applicant, can not be ignored. 15. Considering the nature of weapons recovered at instance of applicant and all attending facts, applicant is not entitled for grant of bail.
16. Accordingly, the instant bail application filed on behalf of the applicant- Vishnu Mishra is rejected.
Order Date :- 14.5.2024
S Rawat
