Dismissed

Dilip Mishra v. State of U.P. Thru Principal Sec.Home Secretareat Lucknow

Allahabad HC17 May 2019BAIL/35002/2013

Case brief

AI extract

What is this about?

The High Court rejected an application to recall an earlier bail order and cancel bail granted in 2013. The court held that despite alleged failure to hear complainant's counsel initially, the order remained valid. Furthermore, the applicant did not breach bail conditions as subsequent criminal charges lacked substance or resulted in bail.

What did the court decide?

The application for recalling the bail order dated 19.5.2014 and for cancelling the bail granted to the accused was rejected.

Dilip Mishra Vs State of U.P. Thru Principal Sec.Home… — Bail and Remand | Allahabad HC (2019)

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Court No. - 40

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35002 of 2013

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Applicant :- Dilip Mishra Opposite Party :- State Of U.P. Thru Principal Sec.Home Secretariat Lucknow Counsel for Applicant :- L.K. Dwivedi, Dileep Kumar, Swati Agrawal

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Counsel for Opposite Party :- Govt. Advocate, Abhijeet Mukharji,G.S. Chaturvedi,Swati Agrawal Srivastava

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Hon'ble Harsh Kumar,J.

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It is admitted fact that Criminal Misc. Bail Application No.35002 of 2013 was allowed vide order dated 19.5.2014 by Hon. Virendra Vikram Singh, J (since retired) granting bail to accused Dilip Mishra (hereinafter referred to as ‘accused’) subject to certain conditions mentioned therein.

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Upon passing of order granting bail dated 19.5.2014 a Correction Application No.238826 of 2014 was moved on 25.6.2014 on behalf of first informant Kamal Kumar, complainant (hereinafter referred to as ‘complainant’) through Shri Dilip Kumar, Advocate for correction of bail order dated 19.5.2014 with the averments that the impugned order dated 19.5.2014 states that it was passed after hearing learned counsel for complainant though in fact counsel for complainant Shri Dileep Kumar was not present before the Court and fact of hearing him appears to have been mentioned in the impugned bail order, due to inadvertent error and prayer has been made for correcton of order and deletion of words ‘learned counsel for complainant’. In addition to above it has also been contended by complainant in above correction later on misc. application no.217296 of 2014 was moved by complainant on 9.7.2014 for cancelling the bail graned to accused and fresh order be passed on bail application after recalling order dated 19.5.2014 with the allegation that accused Dilip Mishra

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has committed breach of terms of impugned bail order, and his bail is liable to be cancelled.

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On the above two applications being Misc. Application No.217296 of 2014 and Criminal Misc. Correction Application No.202388 of 2014, Court has passed following order :-

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“Hon'ble Virendra Vikram Singh,J.

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Initially the application for recall of the bail order was given, but by way of modification prayer for cancellation of bail has also been made.

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Office to register this application as Criminal Misc. Bail Cancellation Application.

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Let notice be issued to the opposite partyaccused through C.J.M., Allahabad within four weeks'. List thereafter. Order Date :- 8.8.2014 T. Sinha”

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In compliance with order dated 8.8.2014 office to register and allot the application as Criminal Misc. Bail Cancellation Application.

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After 8.8.2014 a supplementary affidavit was filed by complainant through his counsel Smt. Swati Agrawal on 21.2.2016/10.3.2016 apart from certain other misc. applications for listing etc. through Shri Dilip Kumar and Smt. Swati Agrawal and counter affidavit and supplementary counter affidavit was filed on behalf of accused on 18.4.2016, 1.5.2016 and 16.5.2017.

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It was submitted that learned counsel for complainant Smt. Swati Agrawal who filed applications and supplementary affidavit on behalf of complainant has been subsequently appointed as Special Prosecutor to pursue the application moved by complainant Kamal Kumar on behalf of State.

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Heard Shri Dileep Kumar learned counsel for complainant, Smt. Swati Agrawal Special Prosecutor for State and Shri G.S. Chaturvedi, Senior Advocate assisted by Shri L.K.

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Dwivedi learned counsel for accused Dilip Mishra, accused and perused the record.

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The perusal of impugned bail order dated 19.5.2014 passed in Criminal Misc. Bail Application No.35002 of 2013 shows that at the time of granting bail following 4 conditions were imposed :-

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“(1) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.

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(2)That the applicant 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.

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(3) That after his release, the applicant shall not involve in any criminal activity.

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(4) That as the applicant is not having the good conduct shall appear before the C.J.M., Allahabad and shall register his presence in the first week of every month till the conclusion of the trial.”

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The learned counsel for complainant as well as State contends that counsel for complainant could not reach before Court at the time of hearing on the date of listing, i.e., 19.5.2014 and mention about hearing him and passing of order in his presence in impugned order is due to inadvertent error and since order was passed without hearing counsel for complainant the same is liable to be recalled and bail application is required to be re-heard and disposed of afresh; that accused has committed breach of condition no.3 mentioned in impugned order which states that ‘he will not involve in any criminal activity’; that after release on bail accused has committed as many as 6 offences as mentioned

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at Sl. No.32 to 38 in chart of his criminal history filed at SA-8 and thereafter he along with his associates also committed murder of Vijay Kumar Tiwari regarding which F.I.R. was lodged against him & his associates on 20.12.2015 at Case Crime No.230 of 2015, copy at SA-7 under Sections 147, 148, 149, 307, 506 and 302 I.P.C; that above facts show that accused who has a long criminal history has committed various offences in clear breach of condition no.3 of impugned bail order and so his bail is liable to be cancelled.

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Per contra, the above application for correction and cancellation of bail was vehemently opposed by and on behalf of accused and learned counsel for accused contended that the bail application was disposed of vide impugned order dated 19.5.2014 after filing of counter affidavit of Sub Inspector Arun Kumar Ram by State and hearing both parties and A.A.G.; that accused has not committed breach of any of the conditions imposed by Court in the impugned bail order; that rejecting of bail application and cancellation of bail stands on different considerations and unlike rejection of bail cancellation of bail must not be lightly resorted; that the applicant was Block Pramukh while alleged victim of this case is a political leader and MLA because of which applicant has been falsely implicated in various cases in all of which he has been granted bail; that in Case Crime Nos.183 and 184 of 2015 under Sections 147, 148, 323, 353, 504, 506, 392 I.P.C., 7 CLA Act, 1934 and Section 136 (2)(B) of Representation of the People Act, 1951 in connection with election of his wife for Sadasya Pad of Zila Panchayat, admittedly neither accused Dilip Mishra he was present on the spot nor was arrested on the spot nor was involved in any manner whatsoever and all the 14 persons who were arrested at the spot were granted bail; that accused also moved bail applications for bail in above cases as Criminal Misc. Bail Application Nos.5874 of 2016 and 5875 of 2016 which were vehemently opposed by State and also by first informant on the ground that he has committed breach of condition no.3 of impugned bail order dated 19.5.2014, and upon considering all the facts and circumstances a Bench of this Court vide a detailed order dated 16.5.2016 at Annexure

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SCA-1 in third supplementary counter affidavit dated 16.05.2017/14.02.2019 granted him bail in both the cases; that at the time of granting of bail in Case Crime Nos.183 of 2015 and 184 of 2015 vide order dated 16.5.2016 mentioned above it was observed that accused-applicant Dilip Mishra was neither arrested on the spot nor there is any evidence against him to show his active participation in the alleged crime except for a few witnesses who have stated that "they heard that applicant was also present"; that accused was granted bail in present Case Crime No.237 of 2010, S.S.T. No.68 of 2011 in which trial is in progress and almost all the prosecution witnesses of fact have been examined; that there is no whisper by the complainant or State that applicant ever misused liberty of bail and tampered or even attempted to tamper with prosecution evidence; that merely because certain false F.I.Rs were got lodged against accused with malafide intention of seeking cancellation of his bail in this case, he may not be considered to have committed any of the above offences; that as far as Case Crime No.230 of 2015 under Section 302 I.P.C. etc. of which F.I.R. was lodged on 20.12.2015 is concerned though accused Dilip Mishra was falsely named in F.I.R. as accused no.4 but upon investigation no charge sheet was filed against him as mentioned in paragraph 24 of the Supplementary Counter Affidavit dated 18.4.2016; that applicant has neither misused liberty of bail nor has committed in any of the offences whatsoever, subsequent to his release on bail or otherwise; that the chart of criminal history of accused filed by complainant at annexure-SA8 shows that present case crime no.237 of 2010 at no.31 in the chart was last case in the year 2010 prior to slapping of Case Crime No.253 of 2010 (Sl.No.32) under Section 2/3 Gangster Act against him and since then upto 2015 there is admittedly no criminal case to his credit history and the false and concoced criminal history restarts from Case Crime No.120 of 2015 at Sl. No.33 onwards; that there is no ground at all for recall of bail order or for cancellation of bail granted to applicant by impugned order dated 19.5.2014; that there is no provision for recall of order in criminal law, and in any case impugned bail order dated 19.5.2014 is not an ex-parte order and even if it may

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be assumed that counsel for complainant could not reach at the time of hearing, the impugned order was passed at least after hearing the Government counsel, A.G.A. at length; that the applicant has been granted bail in all the cases in which he was falsely implicated subsequently; that the applicant is not a previous convict; that merely by falsely implicating accused in several cases after his release on bail in this case, with mala fide intention of seeking cancelling of his bail, it will not be corrct to say that accused involved in any criminal action or committed breach of condition no.3.

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It is settled principle of law that rejection of bail application and cancellation of bail stands on different footings and different considerations. In the case of (1992) 4 SCC 272, Aslam Babalal Desai vs. State of Maharashtra , 3 Judges Bench of Apex Court held that

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“Grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, namely, bail granted under Sections 437(1) or (2) or 439(1) can be cancelled where

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(i) the accused misuses his liberty by indulging in similar criminal activity,

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(ii) interferes with the course of investigation,

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(iii) attempts to tamper with evidence or witnesses,

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(iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation,

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(v) there is likelihood of his fleeing to another country,

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(vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,

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(vii) attempts to place himself beyond the reach of his surety, etc.

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These grounds are illustrative and not exhaustive. It must also be remembered that

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rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. ”

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The above view was expressed by Apex Court, times again as also in the case of (2004) 2 SCC 362, Mehboob Dawood Shaikh vs State Of Maharashtra.

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Upon hearing parties counsel, perusal of record and considering the material on record, I find that as far as recall of impugned order on account of absence of counsel for complainant is concerned there is no reason to dislodge the observations made by a Bench and even assuming it to be correct that he could not appear at the time of hearing, since the order was passed at least after hearing AGA at length, who had filed counter affidavit of Sub Inspector Arun Kumar Ram on 13.1.2014 with chart of criminal history of accused, hence there is absolutely no good reason for recalling the impugned order after a period of more than 4 years and no useful purpose is likely to be served by making correction in impugned order by deleting the words “learned counsel for complainant”.

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As far as cancellation of bail granted to accused vide order dated 19.5.2014 on account of breach of condition no.3 is concerned, undisputedly in all the cases subsequent to grant of bail shown against him from Sl.No.33 to 38, in criminal history chart at SA-8 he has been granted bail and in Case Crime No.230 of 2015 he has not been charge sheeted so far even after lapse of a period around 3 ½ years. Even if the contention made on behalf of complainant as well as State that investigation is pending against him is accepted for the sake of arguments, it may not be disputed that during investigation for a period of over 3 1/2 years no material evidence could be found against him to indicate his involvement, so as to submit charge sheet against him. In the circumstances it will not be correct to say that accused involved himself in any criminal action or committed breach of condition no.3 of the impugned bail order dated 19.5.2014.

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In view of discussion made above the complainant and State have failed to show any good ground for recalling impugned order or for cancelling bail granted to accused by impugned order dated 19.5.2014 in Case Crime No.237 of 2010, after lapse of period of 5 years. The application is devoid of merits and is liable to be rejected.

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The application for recalling bail order dated 19.5.2014 as well as for cancellation of bail are rejected accordingly. Order Date :- 17.5.2019 VS

Dilip Mishra v. State of U.P. Thru Principal Sec.Home Secretareat Lucknow

Case brief

What is this about?

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Dilip Mishra v. State of U.P. Thru Principal Sec.Home Secretareat Lucknow

Case brief

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