Ashok Kumar Mishra v. State of U.P

Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43376 of 2023 Applicant :- Ashok Kumar Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Nisha Mishra,Siddharth Saran Counsel for Opposite Party :- G.A.,Suraj Kumar Singh Hon'ble Vikram D. Chauhan,J.

¶1Learned A.G.A. for the State submits that instructions have been received and has no objection in case the bail application is heard on merits.

¶2Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶3It is submitted by learned counsel for the applicant that as per allegations in the first information report, it is alleged that the nominated accused persons including the applicant have assaulted the injured, as a result of the same, injured has suffered injury. Specific role of firing has been assigned to co-accused Diwakar Upadhyay and Ratnakar Upadhyay. 3-A. Learned counsel for the applicant submits that injuries of injured are simple in nature, no abnormality detected in the N.C.C.T. head. Learned counsel for the applicant further submits that even doctor has not opined that the injuries are dangerous to life. The dispute has arisen in spur of moment and both the sides have received injuries. Attention of the Court has been drawn to the injury report of the family members of the applicant. The criminal history of the applicant has been explained in paragraph no. 20 of the affidavit. Applicant is languishing in jail since

05.09.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

¶4Sri Suraj Kumar Singh, learned counsel for the informant submits that although the co-accused has been granted bail in the present case, however, insofar as applicant is concerned, facts are slightly different as the applicant was not participating in the investigation and was absconding for which non-bailable warrant was issued. He further submits that till date charge-sheet has not been submitted.

¶5At this stage, learned counsel for the applicant submits that the applicant would cooperate in the investigation and trial court proceedings and will remain present before the Investigating Officer whenever required. He further submits that applicant is also ready to deposit two sureties of Rs. 1 lac each.

¶6Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case.

¶7Learned AGA for the State has pointed out the criminal antecedents of the applicant. No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:- "We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

¶8In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.

¶9In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

¶10The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC

¶51Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant.

¶11No material, facts or circumstances has been shown by learned AGA for the State that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.

¶12It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.

¶13Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State. 13-A. In the present case, it is to be seen that although there are three injured, however, injuries sustained are simple in nature. There is no abnormality detected in the N.C.C.T. head. Both the sides have received injuries. The dispute has arisen in spur in moment.

¶14Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

¶15Let the applicant Ashok Kumar Mishra involved in Case Crime No. 83 of 2021, under Sections 147, 323, 506, 307, 325 IPC, Police Station Chitaipur, District Varanasi, be released on bail on furnishing a personal bond and two sureties of Rs. 1 lac each in the like amount to the satisfaction of the court concerned subject to the following conditions:- i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required. iv. The applicant 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 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. vi. The applicant shall not leave India without the previous permission of the Court. vii. In the event, the applicant changes residential address, the applicant shall inform the court concerned about new residential address in writing. viii. The applicant shall appear before the Investigating Officer during investigation whenever required and shall cooperate in the investigation and in the trial court proceedings. ix. It is also directed that applicant shall not disturb the peaceful living of the informant and his family members. x. The S.H.O. concerned is hereby directed to maintain peace and tranquility between the parties.

¶16In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 1.11.2023 S.Prakash High Court of Judicature at Allahabad