Vishnu Mishra v. State of U.P

Court No. - 78 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22564 of 2023 Applicant :- Vishnu Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Saurabh Raj Srivastava Counsel for Opposite Party :- G.A.,Abhishek Kumar Yadav Hon'ble Raj Beer Singh,J.

¶1Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate, assisted by Sri Saurabh Raj Srivastava, learned counsel for the applicant, learned counsel for the informant and Sri P. C. Srivastava, learned Additional Advocate General for the State of U. P. along with learned A. G. A.

¶2The present bail application has been filed by the applicant in Case Crime No. 194 of 2021, under Sections-147, 149, 452, 323, 504, 506, 307, 511, 392, 120-B IPC, P. S.-Jaitpura, District-Varanasi, with the prayer to enlarge the applicant on bail.

¶3Learned Senior Advocate submitted that the applicant is innocent and he has been falsely implicated in this case. The father of the applicant has been a member of Legislative Assembly for four times and his mother has also been an Ex. M. L. C. and that the prosecution case is wholly false and baseless and has been lodged with malafide intention. No specific date or time of incident or specific role has been mentioned in the first information report. The complainant has made his statement by submitting a typed statement after eleven days of the incident. The alleged first incident has been shown of 22.12.2020 and first information report has been lodged after nine months of the same. There is long and undue delay in recording the statement of the witnesses.

¶4Learned counsel has referred the version of the first information report and submitted that the entire family of the applicant was named in the first information report and that it is not probable that the applicant along with his entire family members, including his sisters, would trespass into the house of the informant and would threaten her.

¶5Learned Senior Counsel submitted that in fact, in the month of August, 2020 a business dispute arose between Krishna Mohan Tiwari and mother of the applicant, regarding partnership firm, M/s Krishna Mohan Tiwari. In order to grab the partnership business, the said Krishna Mohan Tiwari has lodged a case against the family members of applicant and that there are multiple civil and criminal cases pending between both the parties. It was submitted that the said Krishna Mohan Tiwari has planted the complainant and a false first information report was got lodged vide Case Crime No. 379 of 2020 under Sections-376 D, 342, 506 I. P. C. at Police Station-Gopiganj, district-Bhadohi, to settle political scores. The said first information report was registered on 18.10.2020, whereas, the incident was shown of the year, 2014. There is nexus between Krishna Mohan Tiwari and complainant of that case. The said Krsihna Mohan Tiwari and his sons were shown witnesses in that matter. In said Case Crime No. 379 of 2020, the complainant / alleged victim has already been examined and thus, there is no possibility of tampering with evidence. In that matter earlier the applicant could not surrender as he was having serious apprehension / threat to his life, but he was arrested on 24.7.2022 and since then, he is in jail. Referring to the dispute between family of the applicant and said Krishna Mohan Tiwari, it was pointed out that Krishna Mohan Tiwari and his sons and complainant of this case, have lodged as many as sixteen frivolous first information reports against the family members of the applicant. Further, the said witnesses Krishna Mohan Tiwari is having criminal history of ten cases, including the case of murder and rape. The complainant is a lady of dubious character and she is running a racket of honey trap. Earlier on 22.6.2017 she has lodged one first information report vide Case Crime No. 430 of 2017, under Sections-354 A, 504, 506 I.P.C. against one Manoj Sharma on similar lines and after investigation police have submitted final report. She had filed a complaint before the S. S. P., Varanasi against her brother-in-law and in that matter also, final report was submitted. She has lodged one first information report against one Triloki Singh, who is a leader of Aam Aadmi Party (AAP) and that in every case later on either she compromised the matter or police submitted final report. The complainant has also been involved in Hawala racket and she was intercepted by the custom officers for possessing illegal foreign currency and that she is having two passports. It was submitted that the complainant is continuously involved in criminal activities.

¶6In the first information report of this case, no date or time of the alleged incident has been mentioned and there is long delay in recording the statement of the witnesses. The investigation has not been conducted properly. Referring to the first information report, it was submitted that no offence under Section-307 or 392 IPC is made out. There is no independent witness of alleged incident. Further, co-accused Vikas Mishra and Satish Mishra have been granted bail and co-accused Dr. Mukesh Tiwari, Smt. Garima Tiwari, Mrs. Reema Pandey, Mrs. Beema Dubey and Mr. Raj Dubey alias Pankaj Dubey have already been granted anticipatory bail. Criminal history of two cases was shown against the applicant, which has duly been explained. However, after this case, the applicant-accused has been shown to be involved in several other cases, which has duly been explained in the affidavit.

¶7Referring to the facts of the matter, learned Senior Advocate submitted that the allegations made in the first information report are wholly false and this case has been lodged with ulterior motive and that investigation has not been conducted properly and in view of the aforesaid facts, the applicant is entitled for being released on bail.

¶8Learned A. G. A. as well as learned counsel for the informant have vehemently opposed the bail application and submitted that the applicant is named in the first information report. It was submitted that there are serious allegations against the applicant. Earlier rape was committed upon the complainant by the applicant and co-accused Vijay Mishra and Vikas Mishra and that the applicant-accused was continuously absconding and that the accused persons were threatening the complainant to submit affidavit in their favour and to change her statement and due to that reason, all the accused persons, including the applicant, have trespassed into house of the complainant and threatened that earlier co-accused Vijay Mishra has got murdered one Constable Surya Mani Mishra and if she did not make statement in their favour, she would also be met with the same fate and that they have also tried to snatch her mobile phone. The applicant has remained absconder for long time and there is criminal history of eight cases, including a case under the Gangster Act, against the applicant. The statement of complainant has not been recorded in this case so far and if the applicant was released on bail, he may threaten the complainant and witnesses and may tamper with the evidence.

¶9Learned counsel for the informant further submitted that the applicant is an accused in Case Crime No. 379 of 2020, under Sections-376 D, 342, 506 I. P. C. and that the victim of the said case was threatened in order to force her to enter into compromise. In that matter after issuance of non-bailable warrants, process under Section-82/83 Cr. P. C. were also issued against the accused persons and the applicant-accused was declared as proclaimed offender and that a Case under Section 174-A I. P. C. was also registered against him. The version of the complainant is supported by several witnesses. It was submitted that after the applicant was arrested, an A. K.-47 rifle, pistol and cartridges were recovered at his pointing out and in that connection, a report has been lodged against him as Case Crime No. 230 of 2020, under Sections-3/7/25 of Arms Act. Earlier he was granted by this Court in Case Crime No. 194/2021, under Sections-147, 148, 149, 452, 323, 504, 506, 307, 511, 392, 120-B I. P. C. and that bail was cancelled by Hon'ble Apex Court vide order dated 28.4.2023. It was submitted that the statement of the complainant has not been recorded before the trial Court so far and that, if the applicant was granted bail, he may tamper with evidence.

¶10I have considered the rival submissions and perused the record.

¶11Perusal of Record shows that on 18.10. 2020 the informant has lodged an FIR vide case Crime No. 379 of 2020 under section 376 D, 342 and 506 IPC against the applicant and accused Vijay Mishra and Vikas Mishra making allegations of gang rape. First information of this case was lodged on

13.9.2021, wherein, it was alleged that the applicant and co -accused persons were threatening and pressurizing the informant to change her statement, in the said gang rape case, in their favour and it was also alleged that the applicant and co-accused have trespassed into the house of the informant and they assaulted and threatened her. It was shown that in the said earlier case registered as Case Crime No. 379 of 2020, the applicant accused did not surrender for long time and he has continuously absconded and due to these reasons, the process under Sections-82 and 83 Cr.P.C. was executed and after that a case under Section 174-A IPC was also registered against the applicant and co-accused persons and after that the applicant was arrested on 24.7.2022. In Case Crime No. 230 of 2020, one A. K.-47 rifle and pistol were shown recovered at the instance of the applicant accused. It was also shown that in one of the cases, Case Crime No. 194 of 2020, the applicant-accused was granted bail by this Court but the same was cancelled by the Hon'ble Apex Court. Though it was pointed out that in Case Crime No. 379 of 2020 the statement of informant/ victim has already been recorded but in the present case, statement of informant is yet to be recorded and an apprehension was expressed on behalf of the prosecution and the informant that in case the applicant was granted bail, he may threaten the informant and temper with evidence.

¶12In view of the facts and circumstances of the case, at this stage, no case for bail is made out. Hence the bail application of applicant-accused is hereby rejected. However, after statement of informant of this case is recorded before the trial Court or in case no substantial progress is made in the trial within a period of six months from today, the applicant-accused would be at liberty to move a fresh bail application in accordance with law.

¶13With the aforesaid observations, the bail application is rejected. Order Date :- 30.10.2023 HR High Court of Judicature at Allahabad