Sunday, October 1, 2023

Allahabad High Court rejects bail application of former Block Pramukh accused in murder case

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The Allahabad High Court has rejected the bail application of former ‘Block Pramukh’ Dilip Mishra, accused in the city’s famous Dr A.K Bansal murder case.

A Single Bench of Justice  Saral Srivastava passed this order while hearing a Criminal Misc Bail Application filed by Dilip Mishra.

The bail application has been filed on behalf of applicant in Case under Sections 302 of IPC and Section 120-B of IPC, Police Station Kydganj, District Prayagraj with the prayer to enlarge the applicant on bail.

On 12.01.2017 at about 7.00 O’clock in the evening one Dr A.K Bansal was murdered by unknown assailants. A first information report was lodged on the same day i.e 12.01.2017 against unknown persons bearing Case under Section 302 of IPC & Section 7 of the Criminal Law Amendment Act at P.S Kydganj, District Prayagraj.

Thereafter, the police commenced investigation and recorded the statement under Section 161 of CrPC of first informant-Pradeep Kumar Bansal, brother of the deceased. The investigating officer made a spot inspection and collected two empty cartridges, blood stained stone and goggles etc. from the spot. The investigating officer also recorded the statement of witnesses of the inquest report under Section 161 CrPC.

The investigating officer also collected CCTV footage and DVR and also collected call detail reports of the family members of the deceased.

The Court observed that the investigating officer was informed by the informant that he has identified the person whose images appear on the CCTV footage of the incident in question. The names of the persons identified were Yasir and Shoiab. The investigating officer on 26.3.2021 recorded the statement of Asif, brother of the accused-Yasir, under Section 161 CrPC, who identified out of the two persons one his elder brother Yasir and another Shoiab, friend of Yasir.

He further stated that his brother Yasir was in touch with Shoiab and Maksud @ Zaid and they had committed a number of crimes. He also disclosed that Maksud @ Zaid, committed the murder of his brother Yasir. In this respect, a first information report was lodged at Police Station Antu, Pratapgarh, under Section 302 of IPC, and in this case Maksud @ Zaid has been arrested and languishing in jail.

Later on, the police arrested Shoiab and immediately after his arrest, police in Nakal Fard recorded his statement wherein he has stated that the deceased had given Rs 55,000,00/- to one Alok Sinha for admission of his son but Alok Sinha could not manage the admission of son of deceased and had swindled the money of deceased. The deceased in this regard lodged an FIR against Alok Sinha, and in the said criminal case, Alok Sinha was arrested and was put in the jail in one number circle of B-class barrack, where Alok Sinha came in contact with the applicant accused Dilip Mishra, Ashraf @ Akhatar Katra, Julfikar @ Tota, Gulam Rasool and Pawan Singh.

He further stated that Alok Sinha conspired to kill the deceased with the applicant-accused and Ashraf @ Akhatar Katra. Thereafter, Maksud @ Zaid, Yasir and Shoiab were contacted by the applicant-accused and Ashraf @ Akhatar Katra through one Abrar Mulla. It was agreed that Rs.70 lakh was to be paid by Alok Sinha for the murder of the deceased. He further made disclosure in the statement as to how the murder of the deceased was committed.

The investigating officer recorded the statement of Shoiab under Section 161 of CrPC in which he has reiterated the same statement which was recorded by the police on the arrest of the Shoiab in Nakal Fard. In the statement recorded under Section 161 CrPC, Shoiab reiterated that the applicant-accused was in one number circle of B-Class barrack before Alok Sinha was put in the said barrack.

V.P Srivastava, Senior Counsel has submitted that accept the statement of Shoiab, in which the name of the applicant accused has surfaced for the first time after about four years from the date of commission of offence, there was no incriminating material on record which points to the involvement of the applicant-accused in the said offence.

He further submitted that statement of Shoiab before the police under Section 161 of CrPC cannot be read in evidence on account of bar put by Section 25 & 26 of the Indian Evidence Act, 1872, therefore, the statement of Shoiab recorded by the police cannot be read in evidence against the applicant-accused.

He also submitted that as there is no incriminating material against the applicant-accused except the statement of Shoiab recorded by the police under Section 161 of CrPC, the implication of the applicant-accused in the said criminal case is false.

Senior Counsel said that in the case, it is manifest from the record that the arrest of the applicant-accused is malicious, therefore, the criminal history of the accused does not come in the way of the applicant from being released on bail. He submits that illegal detention of the accused infringes fundamental rights of the accused enshrined under Article 21 of the Constitution of India, therefore, the applicant deserves to be enlarged on bail by the Court.

Senior Counsel further said that it is a case of circumstantial evidence and prosecution has to establish every chain of events to establish the guilt of the applicant-accused. It has been further submitted that applicant is languishing in jail since 27.07.2021 and that in case the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

Per-contra, AGA has submitted that there is sufficient material and evidence on record which establishes the prima facie involvement of the applicant-accused in the crime.

He further submitted that during the investigation the duty of the investigating officer is to see as to whether there is incriminating material and evidence on record which leads to indicate the prima facie involvement of the accused in the crime.

He also submitted that the criminal history of applicant-accused demonstrates that he is habituated and hard core criminal which disentitles him from being released on bail.

In such view of the fact, the argument of the counsel for the applicant that the statement of co-accused Shoiab recorded by the police is no evidence in the eye of law can’t be considered against the Shoiab and co-accused at the stage of bail in view of the Section 30 of the Indian Evidence Act. It is a case where more persons than one are being tried jointly for the same offence, and if the ingredients of Section 30 of the Evidence Act are present, the Court may look into the statement of Shoiab against the applicant also.

The motive of the applicant-accused for eliminating the deceased has come on record in the statement of Anirudh Yadav, employee of Jeevan Jyoti Hospital, wherein he has stated that about three bigha land was purchased by Dr A.K Bansal (deceased) in the vicinity of the land of the applicant-accused which the applicant-accused wanted to purchase from Dr A.K Bansal but he refused to sell the same to him, the accused encroached upon the land of deceased. The aforesaid fact prima facie establishes the motive of the applicant and involvement of the applicant accused in the commission of offence as one of the main conspirator, the Court noted.

While considering the bail, the Court besides other factors has to keep in mind the criminal antecedents of the accused. For enlarging the accused on bail the issue that he has been acquitted in many cases and enlarged on bail in other pending cases does not have much relevance for the reason that the question of enlarging the applicant on bail has to be considered within the parameters laid down by the various pronouncement of the Apex Court. The Court in granting the bail has also to keep in mind factors such as likelihood of the offence being repeated, reasonable apprehension of a witness being influenced, likelihood of danger of justice being thwarted by grant of bail, the Court said.

“In the case, the applicant has a history of 48 criminal cases to his credit out of which in some cases he has been acquitted and in some cases he has been enlarged on bail. The record reflects that after coming out of jail, he has committed offences, hence, it cannot be ruled out that if the applicant is released on bail he shall not commit a crime after release on bail.

At this juncture, it would be apposite to consider the statement of Anirudh Yadav, the employee of Jeevan Jyoti Hospital who in his statement has categorically stated that the accused is a dreaded criminal and he is scared of him. Now this statement of Anirudh Yadav leads to indicate that if the applicant is released on bail, he may influence the witnesses. The offence alleged against the accused is also grave in nature and if charge is proved the accused will be liable for severe punishment.

Though, it is true that the Court has always emphasised that the personal liberty of the person is prime consideration but that personal liberty has to be exercised within the bounds of the law and in a manner so that the peace and tranquillity is not disturbed. The courts have emphasised that the valuable right of liberty of an individual and the interest of society in general has to be balanced while considering bail application.

In the case, the trial has not yet commenced, and that the statement of the witnesses has not yet been recorded by the Court, therefore, keeping in view the criminal antecedent of the accused, there is every likelihood that he can influence or tamper the evidence. Therefore, the judgment relied upon by the counsel for the applicant is not applicable in the facts of the case.

Now so far as the issue of parity is concerned, it is pertinent to note that this Court while granting the bail to Ashraf @ Akhtar Katra, Abrar Mulla @ Mohammad Abrar Khan and Alok Sinha has not considered the law of criminal history and further the orders passed on bail application against the said co-accused person do not disclose as to what was the criminal history of those accused persons, therefore, this fact itself distinguishes the fact of the applicant-accused against all the co-accused who have been granted bail by this Court.

In such view of the fact, the Court applying the principles elucidated by the Apex Court is of the view that applicant is not entitled to be enlarged on bail by the Court”, the Court observed while rejecting the bail application.

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