In a bail application under Section 302/34 IPC, the court granted bail to the applicant noting unrecorded injuries. Conditions include no tampering, presence at trial, and adherence to proclamation rules if issued.
Bail granted on personal bond and two local sureties with strict conditions of appearance and no tampering.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 36
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22647 of 2019
Applicant :- Mohit Srivastava Opposite Party :- State of U.P. Counsel for Applicant :- Rajrshi Gupta,Rizwan Ahamad Counsel for Opposite Party :- G.A.,Sarvesh
Hon'ble Ali Zamin,J.
Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant and perused the material on record.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.023 of 2018, under Section 302/34, P.S. Gwaltoli, District Kanpur Nagar.
Learned counsel for the applicant submits that according to F.I.R on 21.01.2018 at about 11:00 am informant Misri Lal Sharma along with his son Advocate Sunil Kumar was returning after visiting Anandeshwar Temple. On the way his son's friend Chandu met and accompanied them to their house. When they all reached Hanuman Mandir situated at parmath they saw that the applicant was standing with two unknown persons. Applicant seeing them started abusing his son about his profession, on which informant's son forbade not to abuse. Applicant broke out in anger and started scuffle with him, informant and his son's friend Chandu tried to rescue themselves. In the mean time applicant's wife Richa Srivastava came from her home with double barrel gun and gave to her husband and provoked him to kill everyone on which applicant shot dead on the spot and crowd got gathered and caught the applicant. At the time, applicant's wife Richa taking gun and her sister Prachi tried to flee, crowd caught Richa but Prachi succeeded in fleeing away. Applicant and his wife Richa and the gun were handed over to the police reached at the place of incident. As per GD No. 52 page No.78 involvement of Prachi and offenceof Section 302 I.P.C has been found false and was converted under section 304 I.P.C. As per GD entry No. 38 on page no. 27 dated 22.01.2018 at 14:34 applicant was admitted in Hallet Hospital in injured condition and his wife was arrested by lady police who was nursing the applicant at the hospital. He also submits that the applicant has also received injury which was not disclosed in the F.I.R. As per paper no. 59, a single fire arm injury was caused to the deceased. Informant reiterated the F.I.R version in statement under section 161 Cr.P.C I.O. asked the informant about the type of enmity between informant and his deceased son he replied that there was no enmity between deceased and applicant. I.O. again asked why applicant fired upon the deceased, he kept mum. According to Independent Witness Smt. Shanti Devi, when she was on the way to Hanuman Mandir from her house on the date of incident she saw that some persons were assaulting the applicant by lathi danda and to save him applicant's wife came from her house with double barrel gun to scare the assailants. In order to snatch the gun when people stepped forward, the applicant took the gun from his wife and while the assailants were
clambering the gun from the applicant a shot was fired from the gun suddenly which hit the deceased that is why case was converted under section 147,304,34 I.P.C. from section 302 I.P.C.. On complaint of the informant I.O. was changed, second I.O. also recorded the same version of statement of the witnesses. An application was moved by the I.O. to the Forensic Unit for investigating that all of a sudden fire injury can be caused or not. As per paper no. 102 the recordings of Scientific Officer, In-charge, Forensic field Unit, Chhawani, Kanpur Nagar, the injury caused to the deceased was not the targeting one, if it was the targeting shot then it would have been caused at Abdomen Region. It pretends that such injury is caused while clambering with each other and the shot was fired which hit at the back side of head of the deceased. Chargesheet was submitted under section 304/34 I.P.C. but charge was framed under section 302/34 I.P.C.. Order of Session Judge, Kanpur Nagar dated 14.08.2018 was challenged before this Hon'ble court in Criminal Revision No. 2985 of 2018 in which it was observed that "in the impugned order dated 14.08.2018 there is no illegality or infirmity." The above same order of this Hon'ble Court was challenged through Special Leave to Appeal in the Hon'ble Supreme Court in which the court observed that "at this initial stage, we are not inclined to go into the contentions raised by the petitioner and the same are left open to be raised at the appropriate stage". Cross F.I.R under sections 147,148,149,452,325,308,54,506 I.P.C was lodged on 22.04.2018 by the father of the applicant R.K. Srivastava against Santosh @ Hagan , four named and eight unnamed persons according to which police admitted the applicant in Hallet Hospital as applicant was beaten on account of Sabhasad Election rivalry. As per statement of the applicant's father, the information was given by his grandson Jay Shrivastava to the 100 dial through mobile no. 7985625540 and Jay Srivastava, son of the applicant has supported the statement of applicant's father. As per page no. 164, the applicant was admitted in the hospital by his father Rakesh Srivastava. In the case lodged by the father of the applicant, named accused were charge sheeted under all section as disclosed in the F.I.R.. He submits that admittedly the incident occurred at the house of the informant. As per statement of informant there was no enmity between deceased and applicant. As per statement of the informant before the trial court no injury was caused to the applicant by the crowd. As per statement of Dr. Mayank Singh on page no 189 of paper book, 7th-8th right side ribs of applicant were found fractured. He next submits that the prosecution has suppressed the genesis of the incident as is gathered from the facts and circumstances of the case. Applicant has criminal history of 13 cases which have been explained in para 36 of bail application and in para 18 of the rejoinder affidavit. He next submits that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant hall not misuse the liberty of bail and the applicant is languishing in jail since 05.02.2018.
Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the bail prayer of the applicant and submits that applicant has criminal history of 13 cases and reward of Rs.5000 has been declared when he was not appearing in the court. On the date of the incident prohibited cartridge F-12 and
shaktiman 12 have been recovered from from the possession of the applicant which are used for killing the elephant. Injury was caused by the applicant by F- 12 cartridge. No one dares to depose against the applicant. Applicant is also a history sheeter. PW-1 has also stated that applicant is a criminal person and so many are lodged against him in different police station and on search of his house lot of weapons and explosive material will be found. Applicant is continuously seeking adjournment before the trial court. As per counter affidavit witness Satyendra Bajyapee was lodged NCR against two unknown persons under section 504 and 506 I.P.C according to which two unknown person came with blue pulsar bike to the witness/informant while he was with his friend Shailendra near Parmath petrol pump and threatened to kill him and his friend if he depose before the court against the applicant. They also submits that if applicant is released he will commit murder of father of the deceased. Learned A.G.A next submits that first case against the applicant was lodged in 1998, now there are 18 cases against him.
Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, fracture injury in 7th and 8th ribs received to the applicant and not disclosed in the FIR. As per statement of the informant P.W. 1 crowd did not cause any injury to the applicant as well as in case crime no.87/2018 lodged on behest of the applicant's father named accused have been charge sheeted, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- MOHIT SRIVASTAVA involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-
(i) The applicant shall file an undertaking to the effect that he will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the
dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. In case of breach of any of the above conditions, it shall be a ground of cancellation of bail.
Order Date :- 14.12.2020 MAA/-
2 issues framed by the court
Whether bail should be granted to the applicant in a murder case considering his fractured ribs and criminal history.
Whether the suppression of injuries in the FIR warrants bail.
Mohit Srivastava
Ali Zamin
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
