Dismissed

Robby v. State of U.P.

Allahabad HC20 May 2019BAIL/1573/2019

Case brief

AI extract

What is this about?

In this bail application regarding a murder charge, the High Court rejected the grant of bail citing the applicant's extensive criminal antecedents and the heinous nature of the offence, noting he had misused previous bail grants. However, it directed the trial to conclude within one year due to the applicant's prolonged detention. (delivered 20.05.2019)

What did the court decide?

No. 1573 of 2019 rejected; Trial to be concluded within one year from date of this order.

Robby Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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Reserved on 08.05.2019 Delivered on 20.05.2019

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Court No. - 51

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1573 of 2019 Applicant :- Robby Opposite Party :- State Of U.P. Counsel for Applicant :- Shaiwal Kumar Yadav,Imran Ullah Counsel for Opposite Party :- G.A.

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Hon'ble Vipin Sinha,J.

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Heard Sri Imran Ullah, learned counsel for the applicant and Sri Rajesh Mishra, learned AGA appearing on behalf of the State.

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This is a second bail application moved on behalf of applicant praying to enlarge the appellant on bail in Case Crime No.12 of 2017, under Sections 147, 148, 149, 302, I.P.C., Police Station Madrak, District Aligarh.

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The contention of the counsel for the applicant is to the effect that even though the applicant was named in the FIR dated 18.01.2017, which was lodged with regard to the an incident of 18.01.2017, however, the statement of the first informant was recorded on 20.01.2017, wherein he has made certain improvements and some new accused persons were also introduced namely Ankit and Gopal. He also admits that on the date of the incident heavy fog was falling and on a specific query being made ^^iz'u%& vkius vius csVs nhid mQZ nhiw ds gR;kjksa dqgjk gksus ij Hkh D;k lgh&lgh igpku fy;k Fkk \ mRrj %& bruk lqurs gh pqi jg x;k vkSj dksbZ tokc ugha fn;k**A

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The counsel for the applicant has further placed, reliance upon the statement of the wife of the deceased namely Smt. Lata @ Premlata, who was also accompanying the deceased at the time of the incident, to show that Smt. Lata @ Premlata has also improved her earlier version and she also states that on the basis of information received from the villagers she has mentioned that Ankit, Gopal,

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Kailash and Chhotu were involved in the said incident. She also admits that on the date of the incident heavy fog was falling. It may be appreciated that the incident is of 18.01.2017 i.e. almost mid winter and the time of the incident as mentioned in the FIR is about 7 O’clock in the morning.

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The counsel for the applicant has placed reliance upon the affidavits given by the independent witnesses namely Virendra Pal Singh, Nagendra Pratap Singh and Shripal Singh, in support of the contention that on account of heavy fog nobody has actually seen the incident and the names have been given on the basis of previous enmity and hearsay and moreover, the prosecution version as set up in the FIR has been subsequently improved and the name of some new accused persons have been introduced. Reliance has also been placed on the subsequent statements of Rakesh Kumar Sharma and Kapil, who happen to be another sons of the first informant Tejpal and the brother of the deceased, respectively and also on the statement of Kumari Manisha @ Mona, who happens to be the daughter of the first informant and the sister of the deceased, respectively both of them have categorically stated in their statements that their brother namely Deepak (deceased) was killed by Ankit, Gopal and Chhotu, in criminal conspiracy with Mahesh Pal Singh.

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The counsel for the applicant further contends that from the statements of the independent witnesses itself it is clear that the deceased was having a long checkered criminal history. It has been further informed that even in the statement of Smt. Saroj, the wife of the first informant the names of Ankit, Gopal and Shyam Veer have been arraigned as an accused persons, being responsible for the alleged incident alongwith Mahesh Pal Singh.

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At this stage itself, it may be appreciated that as far as the accused Ankit is concerned he has been granted bail by another Bench of this Court vide order dated 12.09.2017, copy of the order has been produced by the counsel for the applicant and the same has been perused by the Court. It has also been contended that the recovery of the pistol has been shown from the accused Ankit and Gopal.

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The contention of the counsel for the applicant is that the eye witnesses have changed their stands and have implicated different persons. The further contention is that in view of the evidence collected by the investigating officer, he has issued Parcha No.14, which is of 10.05.2017, copy of which is annexed on page no.48-A of the affidavit filed in support of the bail application, a perusal of which shows that the applicant was wrongly implicated in the present case (jkSch iq= vejiky mQZ fHkDdk] fuoklh 'kgoktiqj Fkkuk fot;x<+ vyhx<+ dh uketnxh >waWBh ik;h tkrh gS). However, subsequently an application was moved, in which an order was passed for further investigation, and thereafter, the applicant has again been made an accused.

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Sri Rajesh Mishra, learned AGA appearing on behalf of the State has very strongly opposed the prayer of bail of applicant with the contention that the applicant was named in the impugned FIR, specific role has been assigned to the applicant and also looking to the number of injuries found on the body of the deceased and also looking to the fact that the applicant also has a long checkered criminal history, he is not entitled to grant of any indulgence by this Court.

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As far as the criminal history of the applicant is concerned the same has been duly explained in paragraph no.31 and onward of the

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affidavit filed in support of the bail application and also in the supplementary affidavit dated 07.01.2019. A brief history as explained, are mentioned herein below:-

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Sl. No.	Case Crime Number, under Sections	Present Statues
1	33 of 2015, under Sections 147, 148, 302, 120-B, IPC.	Acquitted
2	76 of 2015, under Sections 25 Arms Act.	Acquitted
3	103 of 2014, under Sections 394, 411, IPC.	Bail
4	443 of 2012 under Sections 302 IPC.	Bail
5	117 of 2012, under Sections 302, 307, IPC.	Acquitted
6	149 of 2012, under Sections under Sections 25 Arms Act.	Acquitted
7	484 of 2015 under Sections	Bail
8	494 of 2012 under Sections	Bail
9	494 of 2012 under Sections 307 IPC.	Bail
10	464 of 2012, under Section 147, 148, 149, 307, 341, IPC	Bail
11	309 of 2013 under Sections 307, 384, 323, 506, IPC.	Bail

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From the perusal of the long criminal history of the applicant, as has been explained above, it appears that in Case Crime No. 443 of 2012, under Section 302, IPC, the applicant was granted bail by this Court on 07.06.2013 and similarly in Case Crime No. 464 of 2012, under Sections 147, 148, 149, 307 and 341 IPC, the applicant was granted bail by this Court on 29.01.2013 and again in Case Crime No. 309 of 2013, under Sections 307, 384, 323, 506, IPC, the applicant was granted bail by this Court on 04.09.2014. In Case Crime No. 494 of 2012, under Section 307, IPC, the applicant was granted bail by this Court on 07.05.2013.

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Sri Rajesh Mishra, learned AGA has further contented that the present crime has been committed by the applicant, while he was on bail in the earlier cases and thus it is stated that the applicant has misused the indulgence granted to him by this Count in the earlier offences, which are also of a heinous in nature. Learned AGA has placed reliance upon a judgment of the Apex Court rendered in the case of Neeur Yadav v. State of U.P. and another; (Criminal Appeal No. 1272 of 2015 arising out of S.L.P. (Crl.) No. 1596 of 2015 decided on 29.09.2015), wherein the Apex Court while relying upon the number of precedent has held as under:

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"9. On a perusal of the aforesaid list, it is quite vivid that the respondent no.2 is a history-sheeter and is involved in heinous offences. Having stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of doubt to name him a "history-sheeter". The question, therefore, arises whether in these circumstances, should the High Court have enlarged him on bail on the foundation of parity.

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10. In Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, it has been clearly laid down that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter.

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11. It is a well settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are, (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge. 15. This being the position of law, it is clear as cloudless sky that

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the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history- sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. "

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Learned AGA has further placed reliance upon judgment of the Apex Court rendered in the case of State of U.P. v. Amarmani Tripati reported in 2005 (8) SCC 21 , wherein the Apex Court has held as under:

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"18. It is well settled that the matters to be considered in 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 charge; (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 tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] and Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41 : AIR 1978 SC 179] ]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 :

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2004 SCC (Cri) 1977] : (SCC pp. 535-36, para 11)

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"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124] .)"

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Learned AGA has also placed reliance upon judgment of this Court rendered in the case of Pooja Pal v. State of U.P. and two others (Criminal Bail Cancellation Application No. 38904 of 2016 decided on 31.05.2017) and upon a recent judgment of the Apex Court rendered in the case of Ashwini Kumar Upadhyay and others v. Union of India and others (Writ Petition (Civil) No. 699 of 2016).

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The contention of the learned AGA is to the effect that the applicant is not entitled to grant of any indulgence by this Court in view of the fact that he is a habitual offender and in case he is released on bail in the present case, there would be every likelihood of him absconding or of terrorizing the witnesses to such an extent that nobody would come forward to give evidence and the case would also end up in acquittal.

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Thus, in view of what has been discussed above and in view of the consistent legal position and looking to the criminal history of the applicant and also looking to the seriousness of the allegations as made in the FIR, gravity of the offence and severity of the punishment, no case for grant of any indulgence is made out.

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Accordingly, the bail application is hereby rejected.

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However, looking to the fact that the applicant is in jail since 31.03.2018, it is directed that the trial of the aforesaid case pending before the concerned court below be concluded as early as possible, preferably within a period of one year from the date of production of certified copy of this order before the authority concerned, strictly in accordance with Section 309 Cr.P.C. and in view of principle as have been laid down in the judgment of Hon'ble Apex Court in the case of Vinod Kumar v. State of Punjab reported in 2015 (3) SCC 220 and Hussain and Another v. Union of India; 2017 (5) SCC 702, if there is no legal impediment.

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Order Date :- 20.05.2019 VKG

Robby v. State of U.P.

Case brief

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Robby v. State of U.P.

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