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:86498
Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7472 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. 0244 of 2021 (Vishnu Mishra vs. State of U.P.), under Sections - 216 I.P.C. & 3/25 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, on 07.09.2021 police have apprehended Chandan Tiwari and one 9 mm pistol along with two cartridge 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 and a case was registered against Chandan Tiwari and Vishnu Mishra, under Section - 216 I.P.C. and 3/5 Arms Act.
4. Learned Senior Advocate 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. The father of applicant has been a 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 Chandan Tiwari was brutally beaten by the police officials and consequently he has also filed a writ petition before this Court regarding the atrocities. No finger print expert opinion was sought to prove that alleged pistol was thrown by the applicant. The first information report and statements of witnesses demonstrate that no live bullet was recovered from the alleged pistol and it was for the first time in the statement of Pramod Paswan, who has alleged that bullets were recovered from applicant. It was submitted that in fact applicant was arrested on 24.07.2022 from Pune by S.T.F. in reference to above referred 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 has duly been explained. It was stated that at the time of alleged incident on 07.09.2021, the applicant was in Mumbai and on 09.09.2021 applicant has circulated a video showing his presence in Mumbai. 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.
5. Learned A.G.A. has opposed the prayer for bail and submitted that 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 Sections - 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 one AK-47 riffle, four magzine, 375 cartridges of 7.62 mm bore, one pistol of 9 mm along with four live cartridges were recovered at instance of applicant-accused. Applicant was involved in several criminal cases. Alleged recovered AK-47 riffle was used in Case Crime No.111 of 2002. The F.S.L. report 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. Referring to aforesaid facts, it was submitted that applicant is not entitled for bail.
6. I have considered the rival submissions and perused the record.
7. Before proceeding further it may be observed that in case of State through C.B.I vs. Amarmani 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."
8. 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].
9. 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....."..
10. 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."
11. 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.
12. Keeping in view aforesaid legal position, in the instant matter, the allegation against applicant is that applicant-accused was wanted in Case Crime No. 379 of 2020, under Sections - 376-D, 342, 506 I.P.C. and in investigation of that case one Chandan Tiwari was apprehended by the police, who has disclosed that applicant-accused Vishnu Mishra is hiding at his house at Village - Adapur. Chandan Mishra took the police party to his house and there police saw that applicant-accused was present there and after seeing police, he has thrown a pistol on the floor and succeeded in running away. The subsequent recovery of weapons, which was later on effected after arrest of applicant, is not the subject matter of this case. Thus, the instant matter relates to recovery of a 9 mm pistol. The contention raised on behalf of the applicant that there is no independent witness of said recovery, could not be disputed from the side of prosecution. As per counter affidavit, the criminal history of following ten cases has been shown against the applicant :-
Sr. No.
Case Crime No.
Section
Police Station
District
1.
1141/09
3/25 Arms Act
Gopiganj
Bhadohi
2.
323/504/506/449/347/387/419/420/467/468/471/474/120-B I.P.C. and 66-C/66-D I.T. Act
Gopiganj
Bhadohi
3.
376-D/342/506 I.P.C.
Gopiganj
Bhadohi
4.
419/420/467/468 I.P.C.
Gopiganj
Bhadohi
109/2022
3(1) U.P. Gangster Act
Gopiganj
Bhadohi
6.
174-A I.P.C.
Gopiganj
Bhadohi
7.
147/148/452/323/504/506/307/511/392/120-B I.P.C.
Jaitpura
Varanasi
8.
3/7/25 Arms Act
Gopiganj
Bhadohi
9.
174-A I.P.C.
Jaitpura
Varanasi
10.
174-A I.P.C.
Gopiganj
Bhadohi
13. It was shown that Case Crime No.1141 of 2009 and Case Crime No. 688 of 2009, the prosecution was withdrawn by the State. In Case Crime No.379 of 2020, applicant-accused has been acquitted. In some cases, discharge application and in some cases bail application is pending while in Case Crime No.194 of 2021, the bail application has been rejected. The applicant-accused is languishing in jail since 24.07.2022 and thus, he has already undergone the detention of about one year and nine months and it appears that trial of the case is yet to commence. As referred above, the instant case relates to the recovery of a pistol but said recovery was not made from direct possession of applicant. As per prosecution version, after seeing the police, the applicant has thrown the same on the ground and ran away. Applicant was not arrested at the spot. In view of nature of accusations and period of detention, it would not be just and proper to deny bail to the applicant-accused merely on the basis of aforesaid criminal antecedents of the applicant-accused.
14. 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, a case for bail is made out. Hence, the bail application is hereby allowed.
15. Let the applicant-accused - Vishnu Mishra involved in aforesaid crime be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:
(i) The applicant-accused shall not tamper with the evidence during the trial.
(ii) The applicant-accused shall not pressurize/ intimidate the prosecution witness.
(iii) The applicant-accused shall appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant-accused shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
(v) The applicant-accused 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 them from disclosing such facts to the Court or to any police officer or tamper with the evidence.
16. In case of breach of any of the above condition, the Court concerned shall be at liberty to cancel bail of applicant-accused in accordance with law.
Order Date :- 14.5.2024
S Rawat
