The High Court rejected the bail application of an accused charged with murder and affray. The court held that despite arguments regarding false implication and delay in the FIR, the nature of evidence and the seriousness of the charge did not warrant bail.
Bail application rejected.
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. - 16
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4855 of 2020
Applicant :- Manoj Tiwari Opposite Party :- State of U.P. Counsel for Applicant :- Prakash Chandra Srivastava,Mukesh Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Mrs. Vatsala, Advocate files Vakalatnama on behalf of the victim and a supplementary affidavit filed by learned counsel for the applicant which are taken on record.
Heard Sri P.C. Srivastava, learned counsel for the applicant, Mrs. Vatsala, learned counsel for the victim, learned A.G.A. and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Manoj Tiwari seeking enlargement on bail during trial in connection with Case Crime No. 11 of 2018, under Sections 147, 148, 149, 302, 504, 506, 120-B and 307 I.P.C., registered at P.S. Phoolpur, District Allahabad.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case, the occurrence in the present matter is of 17.01.2018 at about 12:15 P.M., whereas the First Information Report has been lodged on the same day at about 17:27 hrs. The distance between place of occurrence and the police station being 2.5 kms only. He further argues that the first informant, his brother Imtiyaz Ahmad and Mohammad Waqil, who as per the First Information Report, are the alleged eye witnesses, are actually not the eye witnesses of the incident because the place where the incident had occurred was only at a distance of 200 mtrs from a police chauki and the incident could not have got unnoticed by the police personnels but even in spite of the same, the First Information Report was lodged after about 5 hrs of the incident. He further points out that the inquest on the body of the deceased started at 17:32 hrs i.e. of just after five minutes of the lodging of the First Information Report, the same is annexed as annexure no. 2 which comes to show that the police was very well present and well informed of the incident but even in spite of the same, no action was taken by them and the First Information Report was lodged with unexplained delay. The statement of the first
informant recorded on 18.01.2018 annexure no. 4 contains the same version as narrated in the First Information Report, but subsequently, in the statement recorded on 21.01.2018 annexure no. 5 for the second time gives different version, in which, coaccused Tauquir Ahmad @ Bichhi and Mohd. Sadab going on one motorcycle were given the role of exhortation whereas, the present applicant Manoj Tiwari and Sandeep Ojha coming on the second motorcycle following it, were given the role of firing on the deceased Shahzadey. It is further argued that Vishal another eye witness has in his statement annexure no. 6 to the affidavit given the same version as given by the first informant in his second statement. Vishal being the owner of Vedanta Hotel where the incident took place, is a natural witness and his statement is invariance with the version in the First Information Report. A case being Case Crime No. 440 of 2016 was registered at Police Station Phoolpur, District Allahabad by Ganga Prasad against Sonu who is the first informant of the present case, Shahzadey who is the deceased in the present matter and two other persons for an incident, in which, Manoj, the present applicant was thoroughly beaten and had received serious injuries, for which, he was treated from Allahabad to Lucknow. He further points out that the third accused Sonu in the said FIR, is the father of Mohd. Waqil who has been mentioned as an eye witness in the present matter. He then states that the applicant has been falsely implicated on account of the previous enmity without any basis and malafides. It has further argued that co-accused Sandeep Ojha has been granted bail by another Bench of this Court vide order dated 27.10.2018 passed in Crl. Misc. Bail Application No. 40548 of 2018. The criminal history of certain cases has been explained in para 15 of the affidavit. The applicant is in jail since 25.04.2019.
Per contra, learned AGA as well as Mrs. Vatsala, learned counsel for the victim oppose the prayer for bail and argued that there is a specific role assigned to the applicant of assaulting the deceased. The present incident is a day light incident on a busy road. The presence of first informant and the eye witnesses are not at all in doubt. The version even as narrated by the first informant in his second statement does not in any manner exonerate the applicant from the role assigned to him. The version of the prosecution in so far as it relates to the applicant has been consistent throughout. Sandeep Ojha, co-accused who has been granted bail by another Bench of this Court as has been pointed out was extended the benefit on the ground that he was not named in the First Information Report. First informant is an eye witness. It was a broad daylight incident. Mrs. Vatsala further provides a copy of an order dated 16.05.2019 passed in Crl. Misc. Writ Petition No. 7182 of 2019 (Bibi Bano Vs. State
of U.P. and 9 others) which was filed by the mother of the first informant against an order of transferring the investigation of the present matter to another district, in which, it has been specifically mentioned that the present applicant had absconded, and subsequently, surrendered after orders to take coercive action under Section 83 Cr.P.C. were issued against him. It has been argued that the applicant absconded for a good period of time and then since coercive action had been taken up against him, he surrendered before the court below. She further stated that the investigation as was being done was partial hence the said writ petition was filed. It has further been argued that in case the applicant is released on bail, there are good chances of absconding and tampering with the evidence. The case lodged by him previously, in which, he had received injuries, was the reason for him taking part on the present incident. It has been argued that the order of co-accused Sandeep Ojha is distinguishable from that of the present applicant.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail.
The bail application is, accordingly, rejected.
Order Date :- 7.2.2020 M. ARIF
(Samit Gopal, J.)
2 issues framed by the court
Whether the applicant, accused in an FIR for murder and affray, is entitled to enlargement on bail during trial.
Whether the allegations of false implication and groundless delay in lodging the FIR warrant release on bail.
1 provisions across 1 enactments
Manoj Tiwari
State of U.P.
Samit Gopal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
