# Ashish Mishra @ Monu v. State of U.P

- **Citation:** (2022) 7 ILRA 518
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-26
- **Case number:** Criminal Misc. Bail Application No. 13762 of 2021
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-mishra-monu-v-state-of-u-p-48906
- **Pages:** 22

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 439 - Indian Penal Code, 1860Sections 147, 148, 149, 307, 326, 427, 34,
302 & 120-B - Arms Act, 1959 - Section 30 &
Motor
Vehicles
Act,1988-Section
177application-rejection-
criminal
conspiracy
and
murder-a
traditional
wrestling
competition was organized, in which Deputy
Chief Minister was Chief Guest-the Thar
vehichle was registered in the name of the
applicant and he was seen in the said vehicle
recovered from the spot, although the
applicant was not seen driving it-There were
two FIRs lodged by witnesses having being
threatened and the two witnesses assaulted
despite protection provided by the Statestatement of injured persons and other eye
witnesses supported the prosecution story-
in the said incident by the vehicle of the
applicant and his followers, about eighteen
protesters were crushed-The cross-version to
the
present
case
does
not
help
the
accused.(Para 1 to 94)

The application is rejected. (E-6)
List of Cases cited:

## Text

_Characters 0–39,695 of 72,558. This is a partial read: ask again with offset=39695 for what follows._

518 INDIAN LAW REPORTS ALLAHABAD SERIES
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned on the following conditions :-

(i) The applicant will not make
any attempt to tamper with the prosecution
evidence in any manner whatsoever.

(ii) The applicant will personally
appear on each and every date fixed in the
court below and his personal presence shall
not be exempted unless the court itself
deems it fit to do so in the interest of
justice.

(iii) The applicant shall cooperate
in the trial sincerely without seeking any
adjournment.

(iv) The applicant shall not indulge
in any criminal activity or commission of any
crime after being released on bail.

(v) In case, the applicant misuses
the liberty of bail 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.

(vi) 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
default of this condition is deliberate or
without sufficient cause, then it shall be
open for the trial court to treat such
default as abuse of liberty of his bail and
proceed against him in accordance with
law.

(vii) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad or certified copy issued from the
Registry of the High Court, Allahabad.

(viii)
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.

19. It may be observed that in the event
of any breach of the aforesaid conditions, the
court below shall be at liberty to proceed for
the cancellation of applicant's bail.

20. It is clarified that the observations,
if any, made in this order are strictly confined
to the disposal of the bail application and
must not be construed to have any reflection
on the ultimate merit of the case.

21. Being a peculiar case, the trial court
is directed to conclude the trial of this case
preferably, within a period of six months
from today without granting any unnecessary
adjournment to either parties except there is
any legal impediment or order of higher
Court.
----------
(2022)07ILR A518
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.07.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 13762 of
2021

Ashish Mishra @ Monu ...Applicant
Versus
State of U.P. ...Opposite Party
7 All. Ashish Mishra @ Monu Vs. State of U.P.
519
Counsel for the Applicant:
Sri Brij Mohan Sahai, Sri Prabhu Ranjan
Tripathi, Sri Salil Kumar Srivastava

Counsel for the Opposite Party:
G.A., Sri Ajai Kumar, Sri Amarjeet Singh
Rakhra, Sri Shashank Singh, Sri Vivek
Kumar Rai

A. Criminal Law - Code of Criminal Procedure,
1973-Section 439 - Indian Penal Code, 1860Sections 147, 148, 149, 307, 326, 427, 34,
302 & 120-B - Arms Act, 1959 - Section 30 &
Motor
Vehicles
Act,1988-Section
177application-rejection-
criminal
conspiracy
and
murder-a
traditional
wrestling
competition was organized, in which Deputy
Chief Minister was Chief Guest-the Thar
vehichle was registered in the name of the
applicant and he was seen in the said vehicle
recovered from the spot, although the
applicant was not seen driving it-There were
two FIRs lodged by witnesses having being
threatened and the two witnesses assaulted
despite protection provided by the Statestatement of injured persons and other eye
witnesses supported the prosecution story-
in the said incident by the vehicle of the
applicant and his followers, about eighteen
protesters were crushed-The cross-version to
the
present
case
does
not
help
the
accused.(Para 1 to 94)

The application is rejected. (E-6)
List of Cases cited:

1. Upkar Singh Vs Ved Prakash & ors. (2004) 13
SCC 292

2. Padam Singh Vs St. of U.P. (2000) 1 SCC 621

3. Vijayee Singh Vs St. of U.P. (1990) 3 SCC 190

4. Nanha s/o Nabhan Kha Vs St. of U.P. (1992)
SCC Online All 871

5. Sanjay Chandra Vs CBI (2012) 1 SCC 40

6. Mirza Akbar Vs Kind Emperor (1940) AIR
Privy Council 176
7. Gurcharan Singh Vs St.(Delhi Admn.) (1978)
1 SCC 118

8. Satender Kumar Antil Vs CBI & anr., Misc.
Appl. No. 1849 of 2021, (SLP Crl. No. 5191 of
2021)

9. P. Chidambaram Vs ED (2020) 13 SCC 791

10. Alister Anthony Pareira Vs St. of Mah.
(2012) AIR SC 3802

11. Kanwar Singh Meena Vs St. of Raj.(2012) 12
SCC 180

12. Prasanta Kumar Sarkar Vs Ashis Chatterjee
& anr. (2010) 14 SCC 496

13. Mahipal Vs Rajesh Kumar @ Polia &
anr.(2020) 2 SCC 118

14. Shahzad Hasan Khan Vs Ishtiaq Hasan Khan
& anr.(1987) 2 SCC 684

15. Ramesh Bhavan Rathod Vs Vishanbhai
Hirabhai Makwana (Koli) & ors.. (2021) 6 SCALE
41

16. Saibal Kumar Gupta & ors.. Vs B.K. Sen &
anr. (1961) 3 SCR 460

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri G.S. Chaturvedi, learned
Senior Counsel, connected through Video
Conferencing, assisted by Sri Salil Kumar
Srivastava, Sri B.M. Sahai, Sri Prabhu Ranjan
Tripathi and Sri Rahul Srivastava, learned
Advocates for the applicant and Sri Amarjeet
Singh Rakhra, learned counsel assisted by Sri
Shashank Singh, Sri Vivek Rai and Ms.
Anumita
Chandra,
learned
Advocates
appearing for one of the victims, Jagjeet Singh
as well as Sri Vinod Kumar Shahi, learned
Additional Advocate General, assisted by Sri
Prachish Pandey, learned AGA for the State.

2. Applicant seeks bail in Case Crime
No. 219 of 2021, under Sections 147, 148,
520 INDIAN LAW REPORTS ALLAHABAD SERIES
149, 307, 326, 427, 34, 302, 120-B IPC,
Section 30 Arms Act, 1959 and Section
177 Motor Vehicles Act, 1988, Police
Station
Tikuniya,
District
Lakhimpur
Kheri, during the pendency of trial.

3. The counter affidavits filed on
behalf of the victim as well as the State and
the rejoinder affidavits are already on
record. The written submissions filed by
the parties at the conclusion of arguments
are also taken on record.

4 . For the sake of brevity, the
prosecution story is not being repeated
here, as the same is already discussed in
earlier orders.

RIVAL CONTENTIONS :

ARGUMENTS ON BEHALF OF
THE APPLICANT:

5. Sri Gopal Chaturvedi, learned
Senior Counsel has submitted that applicant
has been falsely implicated in present case.
He has further submitted that in the
ancestral
village
of
applicant
i.e.
Banveerpur,
a
traditional
wrestling
competition is organized annually. As such
on 3.10.2021, a public meeting was also
organized in the wrestling competition, in
which the Deputy Chief Minister, Mr.
Keshav Prasad Maurya, was the Chief
Guest.
Learned
Senior
Counsel
has
categorically stated that in the name of
farmers, some leaders of the opposition
parties, in association with anti-social
elements, decided to protest the visit of the
Chief Guest in village, Banveerpur, against
a statement made by the father of applicant,
namely, Ajay Mishra "Teny", regarding
protest of the farmers in relation to the
three Agricultural Laws. It is stated that the
helicopter of the Chief Guest was to be
landed at Maharaja Agrasen Play Ground
Helipad, Tikuniya and thereafter, the Chief
Guest had to proceed by road to the place
of wrestling competition. However, without
any permission, a number of protesters,
who were armed with lathis, swords etc.,
gathered there along with notorious persons
and encroached the entire area and even
dug up the helipad, making it impossible to
land the helicopter there. He has further
stated that the description of the incident as
narrated in the F.I.R. is false, rather three
persons including the driver of the vehicle
of applicant were killed by the protesters
and no such incident, as alleged in the
F.I.R., had taken place.

6. Learned Senior Counsel has further
submitted that on being chased by the
protesters, the driver of the vehicle tried to
run away from there in order to save
himself as well as the applicant, but since
the road, which was only 12 ft. wide, and
on which, admittedly (in the F.IR. itself)
the protesters were standing on both sides
of the road, the vehicle overturned and fell
into the ditch on the side of the road. He
has next submitted that one F.I.R. No. 220
of 2021, u/s 143, 147, 148, 149, 323, 324,
336, 302, 109 I.P.C., P.S. Tikuniya, District
Kheri, was also lodged by one Sumit
Jaiswal stating therein that on 3.10.2021, a
wrestling competition was scheduled to be
held at the village of Ajay Mishra "Teny",
in which Deputy Chief Minister, Mr.
Keshav Prasad Maurya, Government of
U.P. was the Chief Guest. It is alleged in
the F.I.R. that the informant, along with
other persons, went to receive the Chief
Guest. The informant was in the Thar
vehicle, which was being driven by one
Hari Om Mishra. However, on the way, the
protesters attacked the vehicles, in which
the driver of the Thar vehicle, namely, Hari
Om Mishra received head injury and he
7 All. Ashish Mishra @ Monu Vs. State of U.P.
521
stopped the vehicle on the side of the road.
Thereafter, the driver was dragged from the
vehicle by the protesters. The informant
and others somehow succeeded to run away
from the spot to save their lives, but the
driver, Hari Om Mishra and two others
were not so lucky and were caught by the
protesters and later on, as per information,
were killed by them. There being a cross
version of the present case, the applicant is
entitled for bail.

7. Learned Senior Counsel has also
vehemently pointed out that Crime No.
220/2021 lodged from the accused side is a
sort of cross version on the ground that
both the sides have sustained injuries
including the death of eight persons and the
lodging of subsequent FIR by way of cross
version is permissible under law on the
basis of Full Bench judgment of Supreme
Court in the case of Upkar Singh vs. Ved
Prakash & others1, and as such the present
bail application is sought to be decided on
the basis of evidence of both the cases
arising out of same transaction relating to
the same occurrence at the same point of
time and same place as propounded by Full
Bench judgment of Supreme Court and the
contents of paras 23 & 24 of the aforesaid
judgment of three Judges is being quoted
below:

"23. Be that as it may, if the law
laid down by this Court in T.T. Antony
case is to be accepted as holding that a
second complaint in regard to the same
incident filed as a counter-complaint is
prohibited under the Code then, in our
opinion, such conclusion would lead to
serious consequences. This will be clear
from the hypothetical example given
hereinbelow i.e. if in regard to a crime
committed by the real accused he takes the
first opportunity to lodge a false complaint
and the same is registered by the
jurisdictional police then the aggrieved
victim of such crime will be precluded
from lodging a complaint giving his
version of the incident in question,
consequently he will be deprived of his
legitimated right to bring the real accused
to books. This cannot be the purport of the
Code.

24. We have already noticed that
in the T.T. Antony case this Court did not
consider the legal right of an aggrieved
person to file counterclaim, on the contrary
from the observations found in the said
judgment it clearly indicates that filing a
counter-complaint is permissible."

8. Sri Gopal Chaturvedi, learned
Senior Counsel, has argued that a false and
concocted story of firing has been cooked
up by the prosecution. As per the FIR itself,
after the said incident, the applicant is
stated to have run away firing as a cover,
but admittedly there is no such firearm
injury sustained by any of the deceased
person or injured person either. Learned
Senior Counsel, to buttress his arguments,
has placed much reliance on the autopsy
report of deceased farmers, wherein not a
single firearm injury has been observed by
the
doctor.
During
the
course
of
investigation, the statement of the doctor,
who conducted the autopsy of the deceased
farmers, was recorded under Section 161
Cr.P.C., in which, he has opined that all
these injuries may have been caused in an
accident. Learned Senior Counsel has also
submitted that the protesters brutally killed
three persons, namely, Hari Om Mishra,
Shubham Mishra and Shyam Sunder, who
were traveling in the ill-fated Thar vehicle.
He has further submitted that the applicant
was
called
during
the
course
of
investigation and he joined and cooperated
522 INDIAN LAW REPORTS ALLAHABAD SERIES
in the investigation and never misused the
liberty given by the Investigating Agency.

9. Regarding the criminal history of
the applicant, learned Senior Counsel has
submitted that in Case Crime No. 92 of
2005, u/s 147, 323, 504, 506, 452 I.P.C.,
P.S. Tikuniya, District Kheri, the applicant
has been acquitted by the trial court vide
judgment and order dated 24.03.2018
passed in Criminal Case No. 1497 of 2017
(State Vs. Ashish Mishra @ Monu). A
copy of the judgment and order dated
24.03.2018 is on record. The applicant has
no other case pending against him. The
other case was withdrawn by the State.

10. Learned Senior Counsel has
submitted that as per the admitted case of
the prosecution, the Thar vehicle was being
driven by Hari Om Mishra, and the
applicant was sitting on the left side,
therefore, the case of prosecution of
crushing the protesters by the applicant is
improbable.

11. Learned Senior Counsel for the
applicant has submitted that the applicant
went to jail on 10.10.2021, and was
released on 15.2.2022. He surrendered in
compliance of the order of the Apex Court
on 24.4.2022 and is in jail since then. He
has complied with the order of the Apex
Court
and
has
even
cooperated
in
investigation. The charge-sheet has already
been filed and the applicant is ready to
cooperate in the trial and there is no
likelihood of him misusing the liberty, in
case, he is enlarged on bail.

12. Learned Senior Counsel has further
stated that the applicant was enlarged on bail
by this Court vide order dated 10.2.2022
(corrected vide order dated 14.2.2022). The
Supreme Court has not rejected the bail
application. Rather, it has remanded it back
for consideration on the ground that the
victim has not been heard. The said order
shall not affect the merits of the case as the
case of the applicant for bail is clearly made
out.

13. Learned Senior counsel has stated
that as per paragraph 43 of the order of the
Supreme Court, the case has been remanded
back to the High Court for fresh adjudication
in a fair, impartial and dispassionate manner.
Paragraph 43 of the said order reads as
follows :-

"43. This Court is tasked with
ensuring that neither the right of an accused
to seek bail pending trial is expropriated, nor
the ''victim' or the State are denuded of their
right to oppose such a prayer. In a situation
like this, and with a view to balance the
competing rights, this Court has been
invariably remanding the matter(s) back to
the High Court for a fresh consideration. We
are also of the considered view that ends of
justice would be adequately met by remitting
this case to the High Court for a fresh
adjudication of the bail application of the
Respondent-Accused, in a fair, impartial and
dispassionate manner, and keeping in view
the settled parameters which have been
elaborated in paragraphs 30 & 31 of this
order."

14. Learned Senior Counsel has
further referred to paragraph 46 of the order
of Supreme Court, wherein no opinion has
been expressed on the facts or merits and
all questions of law have been left open for
this Court to consider and decide preferably
within a period of three months. Paragraph
46 of the said order reads as follows :-

"46. We set aside the impugned
order dated 10.02.2022 (corrected on
7 All. Ashish Mishra @ Monu Vs. State of U.P.
523
14.2.2022) and remit the matter back to the
High
Court.
Respondent
No.1
shall
surrender and be taken into custody as
already directed in paragraph 39 above. We
have not expressed any opinion either on
facts or merits, and all questions of law are
left open for the High Court to consider and
decide. The High Court shall decide the
bail application afresh expeditiously, and
preferably within a period of three months.
The appeal is disposed of in the above
terms."

15. Learned Senior Counsel has stated
that the bail applications of the co-accused
persons, Lavkush, Ankit Das, Sumit
Jaiswal and Shishupal, which have been
rejected by this Court vide order dated
9.5.2022, passed in Criminal Misc. Bail
Application Nos. 2986 of 2022, 1853 of
2022, 2461 of 2022 and 2699 of 2022, shall
have no bearing on the case of the
applicant, as he was not a party in
personam in the case decided by the coordinate Bench of this Court.

16. Learned Senior Counsel has
further stated that the prosecution has not
come with clean hands as the case was later
on modified from being that of gunshot
injuries to that of injuries due to crushing
by vehicles. The applicant was admittedly
not driving the said Thar vehicle, rather
was sitting by the side of the driver, and it
was the driver, who might have panicked
due to rage of the public at large. The case
is of mob lynching and there was so hue
and cry at the place of occurrence that there
was no chance of anybody hearing the
applicant saying "teach them a lesson."

17. Counsel for the applicant, Sri
B.M. Sahai, has stated that the applicant
has not abused the bail and has complied
with the conditions thereof, when he was
accorded bail. He should again be enlarged
on bail. The police has filled up the lacuna
in the prosecution case by roping in the
new witnesses. There is no possibility of
applicant daring to commit such an offence,
who happened to be a political person, as
there is no possibility of three vehicles
crushing 15,000 persons, who are said to
have gathered at the place of occurrence.

18. Learned counsel has further stated
that the provisions of Section 144 Cr.P.C.
were applicable to the agitating farmers as
well and they have categorically flouted the
proclamation under Section 144 Cr.P.C., as
they are stated to have even dug up the
helipad meant for the landing of the
helicopter of the Deputy Chief Minister,
making it non-functional. The procession
by any means cannot be termed as
peaceful.

19. Learned counsel has further stated
that initially at the time of lodging of the
FIR, Sections 279, 338 and 304-A IPC
were mentioned, but the same have been
deleted later on by the investigating agency
with
the
permission
of
the
C.J.M.
concerned. This implies that the vehicles
were being driven at a normal speed.

20. Learned counsel has further
placed reliance on para 40 of the remand
order dated 18.4.2022, passed by the Apex
Court, wherein it has been observed as
follows:-

"40.
.....
regardless
of
the
stringent provisions in a penal law or the
gravity of the offence, has time and again
recognized the legitimacy of seeking liberty
from incarceration. To put it differently, no
accused can be subjected to unending
detention pending trial, especially when the
law presumes him to be innocent until
524 INDIAN LAW REPORTS ALLAHABAD SERIES
proven
guilty.
Even
where
statutory
provisions expressly bar the grant of bail,
such as in cases under the Unlawful
Activities (Prevention) Act, 1967, this
Court has expressly ruled that after a
reasonably long period of incarceration, or
for any other valid reason, such stringent
provisions will melt down, and cannot be
measured over and above the right of
liberty guaranteed under Article 21 of the
Constitution. (See Union of India v. K.A.
Najeeb, (2021) 3 SCC 713)."

21. Learned counsel has further stated
that in paragraph 28 of the order of the
Apex Court, it has been propounded that
the grant of bail under Section 439 Cr.P.C.
is one of wide amplitude and this discretion
is unfettered. On the contrary, the High
Court or the Sessions Court must grant bail
after the application of a judicial mind,
following well-established principles, and
not in a cryptic or mechanical manner.

22. Sri Salil Kumar Srivastava,
learned counsel arguing on behalf of the
applicant, has stated that the capturing of
helipad in order to show protest is itself an
offence, which is established by the
statements of the witnesses, which have
been annexed to the counter affidavit filed
on behalf of the victim. This shows the
malice at the part of the protestors.

23. Learned counsel has further stated
that one Punto car from the side of the
applicant was ransacked by the protesters
with an ulterior motive, which goes to
show their defiance of law.

24. Learned counsel has next stated
that the statement recorded under Section
164 Cr.P.C. of one witness, namely,
Prabhujeet Singh categorically indicates
that he had seen one Satish Rana running
away from the Thar vehicle and later on, he
is said to have seen Sumit Jaiswal running
from the said vehicle firing in air. The said
statement is on page number 164 of the
counter
affidavit
filed
by
the
victim/complainant, indicating the absence
of applicant at the scene of occurrence.

25. Sri Salil Kumar Srivastava,
learned counsel, has further stated that the
district administration has provided one
gunner each to all the ninety-eight
witnesses and moreover, their family
members
are
being
provided
proper
security and a coverage of CCTV cameras
alongwith a barrier on the road to their
residence and thus, there is no possibility of
any person hampering or tampering with
the prosecution witnesses.

26. Learned counsel for applicant has
further stated that in the statement of
another witness, namely, Simranjeet Singh,
recorded under Section 164 Cr.P.C., copy
whereof has been filed in the rejoinder
affidavit, it has been stated that the
applicant and the co-accused person, Sumit
Jaiswal are said to have taken the refuge in
a sugarcane field after firing in air.

27. Learned counsel has placed much
reliance on the site plan, wherein no
sugarcane field finds mention. The said
discrepancy
categorically
falsifies
the
prosecution
story
that
applicant
had
alighted from Thar vehicle after firing and
had taken shelter in the sugarcane field.

28. Sri Salil Kumar Srivastava,
learned counsel, has further stated that from
the side of the applicant, three persons were
put to death and three had sustained
grievous injuries including fractures, which
have not been explained by the prosecution.
The said non-explanation of the injuries
7 All. Ashish Mishra @ Monu Vs. State of U.P.
525
caused is fatal to the prosecution and the
applicant is entitled for bail on this ground.
Learned counsel has placed reliance on the
judgement of the Supreme Court in Padam
Singh vs. State of U.P.2, wherein it has
been held that:-

"5. ....when the prosecution does not
explain the injury sustained by the accused at
about the time of the occurrence or in the course
of occurrence, the court can draw the inference
that the prosecution has suppressed the genesis
and origin of the occurrence and has thus, not
presented the true version. It is also well settled
that where the evidence consists of interested or
inimical witnesses, then, non-explanation of the
injury on the accused by the prosecution assume
greater importance......"

29. Learned counsel has placed much
reliance on the judgement of the Supreme Court
passed in Vijayee Singh vs. State of U.P3.,
which is quoted below:
10. It was further observed that:

"... in a murder case, the nonexplanation of the injuries sustained by the
accused at about the time of the occurrence or in
the course of altercation is a very important
circumstance from which the court can draw the
following inferences:

(1)
that
the
prosecution
has
suppressed the genesis and the origin of the
occurrence and has thus not presented the true
version;

(2) that the witnesses who have
denied the presence of the injuries on the person
of the accused are lying on a most material point
and therefore their evidence is unreliable.

(3) that in case there is a defence
version which explains the injuries on the
person of the accused it is rendered
probable so as to throw doubt on the
prosecution case."

30. Learned counsel has next stated
that it is undisputed fact that in the charge
sheet, after filing of the bail application,
new
sections
were
added
and
a
correction/amendment
application
was
moved in this Court which was allowed
vide order dated 18.1.2022 and the sections
so mentioned in the charge sheet were
amended in the memo of the bail
application,
which
has
already
been
undertaken in the original memo of the bail
application. Pursuant thereto, Sections
279/338/304A IPC were deleted and
Sections 307/326/427/34 IPC, Section 30
Arms Act and Section 177 Motor Vehicles
Act, 1988 were added.

31. Learned counsel has further
argued that the FIR is the foundation stone
of the offence and the story as narrated in
it, has been later on completely changed by
the prosecution, which itself is indicative of
false implication. It is not a case of
improvement or embellishment, rather a
case of turning the case upside down.

32. Learned counsel has further stated
that right of the private defence as
contemplated under Section 97/103 IPC is
available to the accused side as even
according to the prosecution case, the three
persons sitting in Thar vehicle were
murdered and three others are stated to
have sustained grievous injuries. There was
no possibility of applicant being present
there and escaping.

33. Learned counsel has next stated
that the investigating agency inspected the
place
of
occurrence
and
also
reconstructed/re-created
the
alleged
occurrence and in the inspection report of
526 INDIAN LAW REPORTS ALLAHABAD SERIES
recreation, it has been mentioned that at the
time of occurrence, the Thar vehicle was
running at a normal speed from the place of
meeting i.e. Maharaja Agrasen Inter
College
ground
upto
98
meters
approximately, till turning to Kalesharan
and thereafter, due to some reason, the
speed of Thar vehicle was increased from
its normal speed. It is also submitted that
while
reconstructing
the
alleged
occurrence, the inspection team installed
the dummy of farmers at both sides of the
road
and
the
dummy
Thar
vehicle
alongwith two other dummies of Fortuner
and Scorpio vehicles by running with
normal
speed
upto
98
meters
approximately, from Maharaja Agrasen
Inter College were collided with the
dummies of farmers after increasing the
speed of the vehicles, which corroborates
the factum of loosing of mental equilibrium
of the driver of Thar vehicle, Hari Om
Mishra, who has been murdered by the
complainant side.

34. Learned counsel has further stated
that the story set up by the prosecution is
false as the ballistics expert report of the
weapons seized from the applicant side
does not support the same.

35. Learned counsel has placed
reliance on the call detail report (CDR)
which
reveals
that
the
mobile
no.
9721258797 of the applicant Ashish Mishra
@ Monu was attended 25 times within a
span of 40 minutes between 2.48 pm and
3.28 pm on 3.10.2021, and the location
report of the said mobile reveals his
presence at the same place throughout the
day. Thus, the plea of alibi of the applicant
of having been present at the place of
dangal finds support from the CDR and
location report available. The said fact
finds support from the statement of a
considerable number of witnesses, who
have filed their notarial affidavits and
submitted
through
registered
posts
demonstrating that the applicant was not
present at the place of occurrence but
rather, he was present at the place of
dangal. The SIT has deliberately not
recorded their statements under Section 161
Cr.P.C.

36. Learned counsel has further stated
that the charge-sheet under Sections 188
and 143 IPC has also been filed against the
protesters indicative of their malice having
formed unlawful assembly, disobeying the
order duly promulgated by the public
servant.

37. Learned counsel has submitted
that in the present subject matter, charge
sheet has been filed under Sections 34, 149
and 120-B IPC which is against the
principles of constructive criminality. It
was the complainant side, which was
aggressor and not the applicant. The three
accused persons in the cross FIR are in jail.
Much reliance has been placed on para 60
of the judgement of Allahabad High Court
in Nanha S/o Nabhan Kha vs. State of
U.P.4, which reads as under:

"60. As regards the second part of
the referred question whether it is duty of
the co-accused to disclose in his bail
application the fact that on an earlier
occasion the bail application of another coaccused in the same case has been rejected.
The prior rejection of the bail application of
one of the accused cannot preclude the
court from granting bail to another accused
whose case has not been considered at the
earlier occasion. The accused who comes
up with the prayer for bail and who had no
opportunity of being heard or placing
material before the Court at the time when
7 All. Ashish Mishra @ Monu Vs. State of U.P.
527
the bail of another accused was heard and
rejected, cannot be prejudiced in any other
manner by such rejection."

38. Learned counsel has further
placed reliance on the judgment of
Supreme Court in Sanjay Chandra vs.
Central Bureau of Investigation5, which
reads as under:

"18. In his reply, Shri. Jethmalani
would submit that as the presumption of
innocence is the privilege of every accused,
there is also a presumption that the
appellants would not tamper with the
witnesses if they are enlarged on bail,
especially in the facts of the case, where the
appellants
have
cooperated
with
the
investigation.
In
recapitulating
his
submissions, the learned senior counsel
contended that there are two principles for
the grant of bail - firstly, if there is no
prima facie case, and secondly, even if
there is a prima facie case, if there is no
reasonable apprehension of tampering with
the witnesses or evidence or absconding
from the trial, the accused are entitled to
grant of bail pending trial. He would
submit that since both the conditions are
satisfied in this case, the appellants should
be granted bail.

..........

21. In bail applications, generally,
it has been laid down from the earliest
times that the object of bail is to secure the
appearance of the accused person at his
trial by reasonable amount of bail. The
object of bail is neither punitive nor
preventative. Deprivation of liberty must be
considered a punishment, unless it is
required to ensure that an accused person
will stand his trial when called upon. The
courts owe more than verbal respect to the
principle that punishment begins after
conviction, and that every man is deemed
to be innocent until duly tried and duly
found guilty.

22. From the earliest times, it was
appreciated that detention in custody
pending completion of trial could be a
cause of great hardship. From time to time,
necessity demands that some un-convicted
persons should be held in custody pending
trial to secure their attendance at the trial
but in such cases, `necessity' is the
operative test. In this country, it would be
quite contrary to the concept of personal
liberty enshrined in the Constitution that
any person should be punished in respect of
any matter, upon which, he has not been
convicted or that in any circumstances, he
should be deprived of his liberty upon only
the belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances.

23. Apart from the question of
prevention being the object of refusal of
bail, one must not lose sight of the fact that
any imprisonment before conviction has a
substantial punitive content and it would be
improper for any court to refuse bail as a
mark of disapproval of former conduct
whether the accused has been convicted for
it or not or to refuse bail to an unconvicted
person for the purpose of giving him a taste
of imprisonment as a lesson.

............

39. Coming back to the facts of
the present case, both the Courts have
refused the request for grant of bail on two
grounds: The primary ground is that the
offence alleged against the accused persons
is very serious involving deep rooted
planning in which, huge financial loss is
528 INDIAN LAW REPORTS ALLAHABAD SERIES
caused to the State exchequer ; the
secondary ground is that the possibility of
the accused persons tampering with the
witnesses. In the present case, the charge is
that of cheating and dishonestly inducing
delivery of property and forgery for the
purpose of cheating using as genuine a
forged document. The punishment for the
offence is imprisonment for a term which
may extend to seven years. It is, no doubt,
true that the nature of the charge may be
relevant,
but
at
the same
time,
the
punishment to which the party may be
liable, if convicted, also bears upon the
issue. Therefore, in determining whether to
grant bail, both the seriousness of the
charge and the severity of the punishment
should be taken into consideration.

40. The grant or refusal to grant
bail lies within the discretion of the court.
The grant or denial is regulated, to a large
extent, by the facts and circumstances of
each particular case. But at the same time,
right to bail is not to be denied merely
because
of
the
sentiments
of
the
community against the accused. The
primary purposes of bail in a criminal case
are to relieve the accused of imprisonment,
to relieve the State of the burden of keeping
him, pending the trial, and at the same time,
to keep the accused constructively in the
custody of the court, whether before or
after conviction, to assure that he will
submit to the jurisdiction of the court and
be in attendance thereon whenever his
presence is required.

41. This Court in Gurcharan
Singh v.. State (Delhi Admn.)6, observed
that two paramount considerations, while
considering petition for grant of bail in a
non-bailable
offence,
apart
from
the
seriousness
of
the
offence,
are
the
likelihood of the accused fleeing from
justice
and
his
tampering
with
the
prosecution witnesses. Both of them relate
to ensure the fair trial of the case. Though,
this aspect is dealt by the High Court in its
impugned order, in our view, the same is
not convincing.

42. When the undertrial prisoners
are detained in jail custody to an indefinite
period, Article 21 of the Constitution is
violated.
Every
person,
detained
or
arrested, is entitled to speedy trial, the
question is: whether the same is possible in
the present case."

39. Learned counsel has also referred
the judgment of Privy Council in Mirza
Akbar vs. Kind Emperor7, which reads
thus:

"This being the principle, their
Lordships think the words of Sec. 10 must
be construed in accordance with it and are
not capable of being widely construed so as
to include a statement made by one
conspirator in the absence of the other with
reference to past acts done in the actual
course of carrying out the conspiracy, after it
has been completed. The common intention
is in the past. In their Lordships' judgment,
the words "common intention" signify a
common intention existing at the time when
the thing was said, done or written by the
one of them. Things said, done or written
while the conspiracy was on foot are
relevant as evidence of the common
intention, once reasonable ground has been
shown to believe in its existence. But it
would be a very different matter to hold that
any narrative or statement or confession
made to a third party after the common
intention or conspiracy was no longer
operating and had ceased to exist is
admissible against the other party. There is
then
no
common
intention
of
the
7 All. Ashish Mishra @ Monu Vs. State of U.P.
529
conspirators to which the statement can have
reference. In their Lordships' judgment Sec.
10 embodies this principle. That is the
construction which has been rightly applied
to Sec. 10 in decisions in India, for instance,
in Emperor v. Ganesh Raghunath, I.L.R. 55
Bom. 839 (1931) and Emperor v. Abani
I.L.R. 38 Cal. 169. In these cases the
distinction was rightly drawn between
communications between conspirators while
the conspiracy was going on with reference
to the carrying out of the conspiracy and
statements made, after arrest or after the
conspiracy has ended, by way of description
of events then past."

40. Learned counsel has referred to
the judgment of the Supreme Court in
Satender
Kumar
Antil
vs.
Central
Bureauu of Investigation & another8,
which reads thus:

"66. What is left for us now to
discuss are the economic offences. The
question for consideration is whether it should
be treated as a class of its own or otherwise.
This issue has already been dealt with by this
Court in the case of P. Chidambaram v.
Directorate of Enforcement, (2020) 13 SCC
791, after taking note of the earlier decisions
governing the field. The gravity of the offence,
the object of the Special Act, and the attending
circumstances are a few of the factors to be
taken note of, along with the period of
sentence. After all, an economic offence
cannot be classified as such, as it may involve
various activities and may differ from one case
to another. Therefore, it is not advisable on the
part of the court to categorise all the offences
into one group and deny bail on that basis..."

41. He has also placed reliance on the
case
law
of
P.
Chidambaram
v.
Directorate of Enforcement9, which reads
as under:-

"23.
Thus,
from
cumulative
perusal of the judgments cited on either
side including the one rendered by the
Constitution Bench of this Court, it could
be deduced that the basic jurisprudence
relating to bail remains the same inasmuch
as the grant of bail is the rule and refusal is
the exception so as to ensure that the
accused has the opportunity of securing fair
trial. However, while considering the same
the gravity of the offence is an aspect
which is required to be kept in view by the
Court. The gravity for the said purpose will
have to be gathered from the facts and
circumstances
arising
in
each
case.
Keeping in view the consequences that
would befall on the society in cases of
financial irregularities, it has been held that
even economic offences would fall under
the category of "grave offence" and in such
circumstance
while
considering
the
application for bail in such matters, the
Court will have to deal with the same,
being sensitive to the nature of allegation
made against the accused. One of the
circumstances to consider the gravity of the
offence is also the term of sentence that is
prescribed for the offence the accused is
alleged
to
have
committed.
Such
consideration with regard to the gravity of
offence is a factor which is in addition to
the triple test or the tripod test that would
be normally applied. In that regard what is
also to be kept in perspective is that even if
the allegation is one of grave economic
offence, it is not a rule that bail should be
denied in every case since there is no such
bar created in the relevant enactment
passed by the legislature nor does the bail
jurisprudence provide so.