# Dilip Mishra (In Jail) v. State of U.P

- **Citation:** (2022) 8 ILRA 295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-01
- **Case number:** Criminal Misc. Ist Bail Application No. 56202 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-mishra-in-jail-v-state-of-u-p-48762
- **Pages:** 24

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 162, 313, 315
& 439 - Amendment Act,1781 - Section - 7
- Indian Penal Code,1860 - Sections 302 &
120-B - Indian Evidence Act, 1872 -
Sections 24, 25, 26 & 30 - Constitution of
India,1950 - Article 21 : - Application for
Bail - FIR - Offence of Criminal Conspiracy and
Murder - Investigating officer made spot
inspection & collected empty cartridges, blood
stained stone and goggles etc. from spot - and
also recorded St.ment of witnesses - further,
collected a CCTV footage & DVR and also
collected call detail report of family members of
deceased - It is true that Court has always
emphasised that personal liberty of person is
prime consideration but that personal liberty has
to be exercised within bounds of law and in a
manner so that peace and tranquillity is not
disturbed - Court further, emphasised that
valuable right of liberty of an individual and
interest of society in general has to be balanced
while considering the bail application - the
criminal history of applicant having 48 cases out
of which 21 are pending reflects that the is a
hardened & habituated criminal and has
misused the bail - consequently, the bail
application is rejected. (Para - 39, 43)

Bail Application Rejected. (E-11)

List of Cases cited: -

## Text

_Characters 0–39,818 of 54,440. This is a partial read: ask again with offset=39818 for what follows._

8 All. Dilip Mishra Vs. State of U.P.
295

The Court is requesting to Govt.
of Uttar Pradesh to constitute a committee
under the leadership of Speaker of
Assembly with three senior bureaucrats to
audit the "Vidhayak Nidhi" of individual
MLA and its utilization as mentioned in
paragraph 22 of the instant order. Reckless
distribution
of
"Vidhayak
Nidhi"
by
unscrupulous MLA are causing more harm
to the society and subject matter resentment
among the masses.

37. So far as the parity is concerned, I
am afraid to extend the benefit of parity to
the present applicant in the light of
Judgement of Hon'ble Apex Court in the
case of Neeru Yadav (supra) and thus
assessing the totality of circumstances, I do
not find any good reason to release the
applicant on bail and consequently, the bail
application of the applicant Mokhtar Anasri
is hereby turned down and rejected.

The records of the case is consigned to
records.
----------
(2022) 8 ILRA 295
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.08.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Criminal Misc. Ist Bail Application No. 56202 of
2021

Dilip Mishra ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Tarun Jha, Sri Satya Dheer Singh
Jadaun, Sri Shashank Shekhar Mishra, Sri
V.P. Srivastava (Sr. Advocate)

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 162, 313, 315
& 439 - Amendment Act,1781 - Section - 7
- Indian Penal Code,1860 - Sections 302 &
120-B - Indian Evidence Act, 1872 -
Sections 24, 25, 26 & 30 - Constitution of
India,1950 - Article 21 : - Application for
Bail - FIR - Offence of Criminal Conspiracy and
Murder - Investigating officer made spot
inspection & collected empty cartridges, blood
stained stone and goggles etc. from spot - and
also recorded St.ment of witnesses - further,
collected a CCTV footage & DVR and also
collected call detail report of family members of
deceased - It is true that Court has always
emphasised that personal liberty of person is
prime consideration but that personal liberty has
to be exercised within bounds of law and in a
manner so that peace and tranquillity is not
disturbed - Court further, emphasised that
valuable right of liberty of an individual and
interest of society in general has to be balanced
while considering the bail application - the
criminal history of applicant having 48 cases out
of which 21 are pending reflects that the is a
hardened & habituated criminal and has
misused the bail - consequently, the bail
application is rejected. (Para - 39, 43)

Bail Application Rejected. (E-11)

List of Cases cited: -

1. Nikesh Tarachand Shah Vs U.O.I. & anr., 2018
(11) SCC 1

2. Dataram Singh Vs St. of U.P. & anr., 2018 (3)
SCC 22

3. Rama Kant Yadav Vs The St. of U.P.,
Criminal Misc. Bail Application No.28420 of
2009

4. Maulana Mohammed Amir Rashadi Vs St. of
U.P. & anr., 2012 (2) SCC 382

5. Neeru Yadav Vs St. of U.P., (2015) 3 SCC (Cri)
527
296 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Pakala Narayana Swami Vs The King Emperor,
40 Cr. L.J. 1939

7. Harjit Singh Vs Inderpreet Singh @ Inder &
anr., AIR 2021 SC 4017

8. Mokhtar Ansari Vs St. of U.P., Criminal Misc.
Bail Application No.46494 of 2021

9. Prahlad Singh Bhati Vs NCT of Delhi & anr.,
2001 (4) SCC 280

10. Prasanta Kumar Sarkar Vs Ashish Chatterjee
& anr., 2010 (14) SCC 496

11. Gudikanti Narasimhulu Vs Public Prosecutor,
High Court of A.P., (1978) 1 SCC 240

12. Ash Mohammad Vs Shiv Raj Singh, (2012) 9
SCC 446

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

14. Rajesh Kumar Vs St. through Government of
NCT of Delhi, (2011) 13 SCC

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri V.P. Srivastava, learned
Senior Counsel assisted by Sri S.D. Singh
Jadaun and Sri Shashank Shekhar Mishra,
learned counsel for the applicant and Sri
Vikas Sahai and Sri Manoj Kumar
Dwivedi, learned AGA for the State.

2. Pleadings have been exchanged
between the parties.

3. The present bail application has been
filed on behalf of applicant in Case Crime
No. 28 of 2017, 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.

4. 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 Crime No.28 of 2017, under
Section 302 of I.P.C. & Section 7 of the
Criminal Law Amendment Act at P.S.
Kydganj, District Prayagaj.

5. Thereafter, the police commenced
investigation and recorded the statement under
Section 161 of Cr.P.C of first informantPradeep Kumar Bansal, brother of deceased.
The investigating officer made 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 inquest report under
Section 161 Cr.P.C. The investigating officer
also collected a CCTV footage and DVR and
also collected call detail report of the family
members of the deceased.

6. It appears 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 person
identified were Yasir and Shoiab. The
investigating officer on 26.3.2021 recorded
the statement of Asif, brother of the accusedYasir, under Section 161 Cr.P.C., 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 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.

7. Later on, the police arrested Shoiab
and immediately after his arrest, police in
8 All. Dilip Mishra Vs. State of U.P.
297
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.

8. The investigating officer recorded
the statement of Shoiab under Section 161
of Cr.P.C. 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 Cr.P.C., Shoiab reiterated that
the applicant-accused was in one number
circle of B-Class barrack before Alok Sinha
was put in the said barrack.

9. Sri V.P. Srivastava, learned Senior
Counsel has submitted that except 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 applicantaccused in the said offence. He further
submits that statement of Shoiab before the
police under Section 161 of Cr.P.C. 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 applicantaccused. He submits that as there is no
incriminating
material
against
the
applicant-accused except the statement of
Shoiab recorded by the police under
Section 161 of Cr.P.C, the implication of
the applicant-accused in the said criminal
case is false.

10.

Elaborating
the
aforesaid
submission, learned Senior Counsel has
placed reliance upon Section 162 of Cr.P.C.
and submits that the statement recorded by
police during investigation can be used
only for the purposes of contradiction in the
statement of the witness and for no other
purposes. He submits that the stage of
recording of statement of accused comes
when the trial is proceeded and the Court
proceeds to examine the accused under
Section 313 Cr.P.C. during trial. He further
placed Section 315 of Cr.P.C. which
provides for the defence of the accused as
witness in his defence. On the strength of
the aforesaid submission, it is contended
that in the absence of any incriminating
material or any legal evidence against
applicant-accused,
the
accused
cannot
remain in incarceration.

11. He further submits that in the
instant 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
298 INDIAN LAW REPORTS ALLAHABAD SERIES
accused infringes fundamental rights of the
accused enshrined under Article 21 of the
Constitution of India, therefore, applicant
deserves to be enlarged on bail by this
Court.

12. Sri V.P. Srivastava, learned
Senior Counsel has also placed paragraph
3(i) to (xxvii) of the supplementary
affidavit explaining the criminal history of
26 cases in which the accused has been
acquitted and paragraph 4(i) to (xviii) of
the supplementary affidavit explaining the
pending criminal cases against the accused
in which applicant has been enlarged on
bail.

13. He further submits 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.

14. In support of his submission,
learned Senior Counsel has placed reliance
upon the judgment of the Apex Court in
Nikesh Tarachand Shah Vs. Union of
India & Anr. Reported in 2018 (11) SCC
1, Dataram Singh Vs. State of U.P. &
Anr., 2018 (3) SCC 22 and order of this
Court passed in Criminal Misc. Bail
Application No.28420 of 2009 (Rama
Kant Yadav Vs. The State of U.P.). He has
also relied upon the judgment of Apex
Court in Maulana Mohammed Amir
Rashadi Vs. State of U.P. & Anr., 2012 (2)
SCC 382, Neeru Yadav Vs. State of U.P.,
(2015) 3 SCC (Cri) 527 and the judgment
of PRIVY Council in Pakala Narayana
Swami Vs. The King Emperor, 40 Cr. L.J.
1939.

15. It is further urged that the accused
is also entitled to parity with the co-accused
Alok Sinha, Abrar Mulla @ Mohammad
Abrar Khan, Ashraf @ Akhatar Katra who
have already been enlarged on bail in
Criminal Misc. Bail Application Nos.
43296 of 2021, 53760 of 2021 and 15274
of 2022 vide order dated 10.12.2021,
20.12.2021 and 13.07.2022 respectively.
Hence, the applicant-accused is also
entitled to be released on bail on the ground
of parity as his case stands on a better
footings
than
the
above
co-accused
persons.

16. Per-contra, learned AGA has
submitted that there are sufficient material
and evidence on record which establishes
the prima facie involvement of the
applicant-accused in the crime. He submits
that during the investigation the duty of the
investigating officer is to see as to whether
there
are
incriminating
material
and
evidence on record which leads to indicate
the prima facie involvement of the accused
in the crime. He further submits that the
statement of one Pran Nath was recorded
under Section 161 Cr.P.C. wherein he has
stated that he along with his late brother
Madhav Prasad stood surety for Alok Sinha
after his release from bail in Case Crime
No. 644 of 2015 on the instructions of the
applicant-accused-Dilip
Mishra.
It
is
submitted that the statement of Pran Nath
acknowledges the fact that the applicantaccused has close acquaintance with Alok
Sinha.

17. He further submits that one
Anirudh Yadav, an employee of Jeevan
Jyoti Hospital, has made the statement that
the deceased had purchased about three
bigha land in the vicinity of land of
applicant-accused, who was pressurizing
the deceased to sell the said land to him but
8 All. Dilip Mishra Vs. State of U.P.
299
the deceased did not agree to sell the said
land to the applicant-accused which led the
applicant-accused to encroach upon the
land of the deceased situated in the vicinity
of the applicant-accused. He further stated
that the persons known to the applicantaccused stood surety for Alok Sinha.
Accordingly, it is submitted that the
accused-applicant
has
motive
for
eliminating the deceased, and the aforesaid
fact clearly indicates the prima facie
involvement of the accused in the crime.

18. He further submits 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 this respect, he
has placed reliance upon the judgment of
the Apex Court in the case of Harjit Singh
Vs. Inderpreet Singh alias Inder and
another, AIR 2021 SC 4017 and the recent
judgment of this Court passed in Criminal
Misc. Bail Application No.46494 of 2021
(Mokhtar Ansari Vs. State of U.P.

19. Sri Vikas Sahai, learned AGA has
also placed Section 30 of the Indian
Evidence Act, 1872 to contend that though
the confessional statement or statement
recorded under Section 161 Cr.P.C. is a
weak evidence but it can be read as an
evidence under Section 30 of the Indian
Evidence Act, 1872 when more persons
than one are being tried jointly for the same
offence.

20. I have heard learned counsel for
the parties and perused the record.

21. Before proceeding to deal with the
respective contention of the learned counsel
for the parties, it would be apposite to refer to
few judgments wherein the Apex Court has
elucidated the principles to be born in mind
while granting bail. In the case of Prahlad
Singh Bhati Vs. NCT of Delhi and Anr.,
2001 (4) SCC 280, the Apex Court stated the
principles which are to be considered while
granting bail. Relevant paragraph of the said
judgment is reproduced herein below:

8. The jurisdiction to grant bail
has to be exercised on the basis of well
settled principles having regard to the
circumstances of each case and not in an
arbitrary manner. While granting the bail,
the court has to keep in mind the nature of
accusations, the nature of evidence in
support thereof, the severity of the
punishment which conviction will entail,
the character, behaviour, means and
standing of the accused, circumstances
which are peculiar to the accused,
reasonable possibility of securing the
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the public or State and similar other
considerations. It has also to be kept in
mind that for the purposes of granting the
bail the Legislature has used the words
"reasonable grounds for believing" instead
of "the evidence" which means the court
dealing with the grant of bail can only
satisfy it as to whether there is a genuine
case against the accused and that the
prosecution will be able to produce prima
facie evidence in support of the charge. It is
not excepted, at this stage, to have the
evidence establishing the guilt of the
accused beyond reasonable doubt.

22. In the case of Prasanta Kumar
Sarkar Vs. Ashish Chatterjee and Anr.,
2010 (14) SCC 496 the Apex Court laid
down the factors which the Court should
bear
in
mind while
considering
an
application for bail, which are reproduced
herein below:
300 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) whether there is any prima
facie or reasonable ground to believe that
the accused had committed the offence;

(ii) nature and gravity of the
accusation;

(iii) severity of the punishment in
the event of conviction;

(iv)
danger
of
the
accused
absconding or fleeing, if released on bail;

(v) character, behaviour, means,
position and standing of the accused;

(vi) likelihood of the offence
being repeated;

(vii) reasonable apprehension of
the witnesses being influenced; and

(viii) danger, of course, of justice
being thwarted by grant of bail.

23. Now in the light of aforesaid
principles which the Court has to keep in
mind in considering a bail application, the
Court proceeds to consider the contention
of the respective parties.

24. Learned counsel for the applicant
has laid emphasis as to the purpose of
granting bail, in this regard, he has placed
reliance upon a judgment of the Apex
Court in the case of Nikesh Tarachand
Shah (supra), wherein the Apex Court had
considered the history of bail as defined in
Clause 39 of the Magnacarta. Relevant
paragraph nos. 15, 16 and 18 of the
judgment are reproduced herein below:

15. The provision for bail goes
back to Magna Carta itself. Clause 39,
which was, at that time, written in Latin, is
translated as follows:

"No free man shall be seized or
imprisoned or stripped of his rights or
possessions, or outlawed or exiled, or
deprived of his standing in any other way,
nor will we proceed with force against him,
or send others to do so, except by the
lawful judgment of his equals or by the law
of the land." It is well known that Magna
Carta, which was wrung out of King John
by the barons on the 15th of June, 1215,
was annulled by Pope Innocent III in
August of that very year. King John died
one year later, leaving the throne to his 9
year old son, Henry III. It is in the reign of
this pious King and his son, Edward I, that
Magna Carta was recognized by kingly
authority. In fact, by the statutes of
Westminster of 1275, King Edward I
repeated the injunction contained in clause
39 of Magna Carta. However, when it came
to the reign of the Stuarts, who believed
that they were kings on earth as a matter of
divine right, a struggle ensued between
Parliament and King Charles I. This led to
another great milestone in the history of
England called the Petition of Right of
1628. Moved by the hostility to the Duke of
Buckingham, the House of Commons
denied King Charles I the means to conduct
military operations abroad. The King was
unwilling to give up his military ambition
and resorted to the expedient of a forced
loan to finance it. A number of those
subject to the imposition declined to pay,
and some were imprisoned; among them
were those who became famous as "the
Five Knights". Each of them sought a writ
of habeas corpus to secure his release. One
of the Knights, Sir Thomas Darnel, gave up
the fight, but the other four fought on. The
King's Bench, headed by the Chief Justice,
made an order sending the knights back to
prison. The Chief Justice's order was, in
fact,
a
provisional
refusal
of
bail.
Parliament being displeased with this,
invoked Magna Carta and the statutes of
Westminster, and thus it came about that
the Petition of Right was presented and
adopted by the Lords and a reluctant King.
Charles I reluctantly accepted this Petition
of Right stating, "let right be done as is
8 All. Dilip Mishra Vs. State of U.P.
301
desired by the petition". Among other
things, the Petition had prayed that no free
man should be imprisoned or detained,
except by authority of law.

16. In Bushell's case, decided in
1670, Chief Justice Sir John Vaughan was
able to state that,

"the writ of habeas corpus is now
the most usual remedy by which a man is
restored again to his liberty, if he have
been against law deprived of it."

Despite this statement of the law,
one Jenkes was arrested and imprisoned
for inciting persons to riot in a speech,
asking that King Charles II be petitioned to
call a new Parliament. Jenkes went from
pillar to post in order to be admitted to
bail. The Lord Chief Justice sent him to the
Lord Chancellor, who, in turn, sent him to
the Lord Treasurer, who sent him to the
King
himself,
who,
"immediately
commanded that the laws should have their
due course." (See Jenke's case, How. St. Tr.
at pp. 1207, 1208, (1676) 6 How St Tr
1189). It is cases like these that led to the
next great milestone of English history,
namely the Habeas Corpus Act, 1679. This
Act recited that many of the King's subjects
have been long detained in prison in cases
where, by law, they should have been set
free on bail. The Act provided for a habeas
corpus procedure which plugged legal
loopholes and even made the King's Bench
Judges subject to penalties for noncompliance.

18. What is important to learn
from this history is that clause 39 of Magna
Carta was subsequently extended to pretrial imprisonment, so that persons could
be enlarged on bail to secure their
attendance for the ensuing trial. It may
only be added that one century after the
Bill of Rights, the US Constitution
borrowed the language of the Bill of Rights
when the principle of habeas corpus found
its way into Article 1 Section 9 of the US
Constitution, followed by the Eighth
Amendment to the Constitution which
expressly states that, "excessive bail shall
not be required, nor excessive fines
imposed,
nor
cruel
and
unusual
punishments inflicted". We may only add
that the Eighth Amendment has been read
into Article 21 by a Division Bench of this
Court in Rajesh Kumar v. State through
Government of NCT of Delhi (2011) 13
SCC 706, at paragraphs 60 and 61.

25. Learned counsel for the applicant
has also placed reliance upon the judgment
of Apex Court in the case of Dataram
Singh (supra) in respect to the principle
that though the grant or refusal of bail
entirely depends upon the discretion of the
judge it must be exercised in a judicious
manner and human approach should be
adopted by the Judge. Relevant paragraph
nos. 3 and 4 of the judgment are
reproduced herein below:

3. While so introspecting, among
the factors that need to be considered is
whether the accused was arrested during
investigations when that person perhaps
has the best opportunity to tamper with the
evidence or influence witnesses. If the
investigating officer does not find it
necessary to arrest an accused person
during investigations, a strong case should
be made out for placing that person in
judicial custody after a charge sheet is
filed. Similarly, it is important to ascertain
whether the accused was participating in
the investigations to the satisfaction of the
investigating
officer
and
was
not
absconding
or
not
appearing
when
required by the investigating officer.
Surely, if an accused is not hiding from the
investigating officer or is hiding due to
some genuine and expressed fear of being
302 INDIAN LAW REPORTS ALLAHABAD SERIES
victimised, it would be a factor that a judge
would need to consider in an appropriate
case. It is also necessary for the judge to
consider whether the accused is a first-time
offender or has been accused of other
offences and if so, the nature of such
offences and his or her general conduct.
The poverty or the deemed indigent status
of an accused is also an extremely
important factor and even Parliament has
taken notice of it by incorporating an
Explanation to Section 436 of the Code of
Criminal Procedure, 1973. An equally soft
approach to incarceration has been taken
by Parliament by inserting Section 436A in
the Code of Criminal Procedure, 1973.

4. To put it shortly, a humane
attitude is required to be adopted by a
judge, while dealing with an application for
remanding a suspect or an accused person
to police custody or judicial custody. There
are several reasons for this including
maintaining the dignity of an accused
person, howsoever poor that person might
be, the requirements of Article 21 of the
Constitution and the fact that there is
enormous overcrowding in prisons, leading
to social and other problems as noticed by
this Court in In Re-Inhuman Conditions in
1382 Prisons, (2017) 10 SCC 658.

26. Now coming to the first
contention of learned counsel for the
applicant that the confessional statement or
statement made before the Investigating
Officer under Section 161 Cr.P.C. cannot
be considered as evidence in view of bar
put by Section 24 and 25 of the Indian
Evidence Act, 1872.

27. There is no dispute or quarrel on the
said principle of law as the said principle has
been settled by catena of decisions by the
Supreme Court but in the instant case, the
Court has to keep in mind that the accused
was involved in the crime with the Shoiab
and other co-accused and the trial of accused
applicant and co-accused shall be conducted
jointly, therefore, Section 30 of the Evidence
Act may also come into play, and if the
ingredients of Section 30 of Evidence Act are
present, the statement of the co-accused can
be pressed into service against the other coaccused if the Court is inclined to accept
other evidence and feels the necessity of
seeking for an assurance in support of its
conclusion deducible from said evidence.

28. In such view of the fact, the
argument of the learned 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. In such view of the fact,
the contention advanced by the learned
counsel for the applicant relying upon
Sections 24 & 25 of the Evidence Act can be
considered at the trial and does not arise for
consideration
while
dealing
with
bail
application as the bail application is to be
considered with the parameters of Section
439 of Cr.P.C. and on the factors enumerated
by the Apex Court in the judgements referred
above.

29. Now the Court proceeds to consider
as to whether the prima facie involvement of
the accused is manifest from the record or
not.

30. In the instant case, a look at the
statement of Pran Nath discloses that he
and his brother became surety of Alok
8 All. Dilip Mishra Vs. State of U.P.
303
Sinha on the instructions of the accused
which prima facie establishes the link and
acquaintance between Alok Sinha and the
applicant-accused.
The
record
further
reveals that Alok Sinha, Dilip Mishraapplicant, Ashraf @ Akhatar Katra, were
lodged in one number circle of B-class
barrack where these three persons had met
and hatched the conspiracy to kill Dr. A.K.
Bansal, the deceased. It has come on record
in the statement of Shoiab that applicantaccused and Ashraf @ Akhatar Katra had
contacted him, Yasir and Maksud @ Zaid,
through Abrar Mulla and gave contract
(supari) for killing the deceased.

31. The motive of the applicantaccused 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 applicantaccused 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.

32. Now coming to the question as to
whether the criminal history of the applicantaccused comes in the way for grant of the
bail. Before considering the said question it
would
be
fruitful
to
glance
through
judgments of the Supreme Court on this
aspect. In the case of Harjit Singh (supra),
an order granting bail has been set aside by
the Apex Court on the ground that the High
Court failed to consider the antecedents of the
respondent no.1 and the threat perception to
the appellant and his family members,
accordingly, the Apex Court found that the
order granting bail was not within the bounds
of law which permits the Court to release an
accused on bail.

33. It would be apt to refer to the
judgment of Apex Court in the case of
Gudikanti
Narasimhulu
Vs.
Public
Prosecutor, High Court of A.P., (1978) 1
SCC 240. Relevant paragraph Nos.7, 8 and 9
of the judgment are reproduced herein below:

"7. It is thus obvious that the
nature of the charge is the vital factor and the
nature of the evidence also is pertinent. The
punishment to which the party may be liable,
if convicted or conviction is confirmed, also
bears upon the issue.

8. Another relevant factor is as to
whether the course of justice would be
thwarted by him who seeks the benignant
jurisdiction of the Court to be freed for the
time being.

9. Thus the legal principle and
practice validate the court considering the
likelihood of the applicant interfering with
witnesses for the prosecution or otherwise
polluting the process of justice. It is not only
traditional but rational, in this context, to
enquire into the antecedents of a man who is
applying for bail to find whether he has a bad
record-- particularly a record which suggests
that he is likely to commit serious offences
while on bail. In regard to habituals, it is part
of criminological history that a thoughtless
bail order has enabled the bailee to exploit
the opportunity to inflict further crimes on the
members of society. Bail discretion, on the
basis of evidence about the criminal record of
a defendant, is therefore not an exercise in
irrelevance."

34. In the case of Ash Mohammad
Vs. Shiv Raj Singh, (2012) 9 SCC 446, the
Apex Court has elaborated that the the
304 INDIAN LAW REPORTS ALLAHABAD SERIES
personal liberty cannot be stretched to an
extent which may disturb the peace of the
society. The personal liberty has to be
enjoyed within the bounds of the law so
that the tranquillity and safety of the
society at large may not jeopardise.
Relevant paragraph no.17, 18 and 19 of the
judgment are reproduced herein below:

"17.
We
are
absolutely
conscious that liberty of a person should
not be lightly dealt with, for deprivation
of liberty of a person has immense impact
on the mind of a person. Incarceration
creates a concavity in the personality of
an individual. Sometimes it causes a
sense of vacuum. Needless to emphasize,
the sacrosanctity of liberty is paramount
in a civilized society. However, in a
democratic body polity which is wedded
to Rule of Law an individual is expected
to grow within the social restrictions
sanctioned by law. The individual liberty
is restricted by larger social interest and
its deprivation must have due sanction of
law. In an orderly society an individual is
expected to live with dignity having
respect for law and also giving due
respect to others' rights. It is a well
accepted principle that the concept of
liberty is not in the realm of absolutism
but is a restricted one. The cry of the
collective for justice, its desire for peace
and harmony and its necessity for
security
cannot
be
allowed
to
be
trivialized. The life of an individual living
in a society governed by Rule of Law has
to be regulated and such regulations
which are the source in law subserve the
social
balance
and
function
as
a
significant instrument for protection of
human
rights
and
security
of
the
collective. It is because fundamentally
laws are made for their obedience so that
every member of the society lives
peacefully in a society to achieve his
individual as well as social interest. That
is why Edmond Burke while discussing
about liberty opined, "it is regulated
freedom".

18. It is also to be kept in mind
that
individual
liberty
cannot
be
accentuated to such an extent or elevated to
such a high pedestal which would bring in
anarchy or disorder in the society. The
prospect of greater justice requires that
law and order should prevail in a civilized
milieu. True it is, there can be no
arithmetical
formula
for
fixing
the
parameters in precise exactitude but the
adjudication should express not only
application of mind but also exercise of
jurisdiction on accepted and established
norms. Law and order in a society protect
the established precepts and see to it that
contagious crimes do not become epidemic.
In an organized society the concept of
liberty basically requires citizens to be
responsible
and
not
to
disturb
the
tranquility and safety which every wellmeaning person desires. Not for nothing J.
Oerter stated:

"Personal liberty is the right to
act without interference within the limits of
the law."

19. Thus analysed, it is clear that
though liberty is a greatly cherished value
in the life of an individual, it is a controlled
and restricted one and no element in the
society can act in a manner by consequence
of which the life or liberty of others is
jeopardized, for the rational collective does
not countenance an anti-social or anticollective act."

35. At this point, it would be also
apposite to refer to judgment of the Apex
Court in the case of Neeru Yadav (supra)
which has been relied upon by counsel for
the applicant as well as learned counsel for
8 All. Dilip Mishra Vs. State of U.P.
305
the respondent. Relevant paragraph nos. 12,
13 and 16 of the judgment are reproduced
herein below:

"12. We have referred to certain
principles to be kept in mind while granting
bail, as has been laid down by this Court
from time to time. It is well settled in law
that cancellation of bail after it is granted
because the accused has misconducted
himself
or
of
some
supervening
circumstances
warranting
such
cancellation have occurred is in a different
compartment altogether than an order
granting bail which is unjustified, illegal
and perverse. If in a case, the relevant
factors which should have been taken into
consideration while dealing with the
application for bail and have not been
taken note of bail or it is founded on
irrelevant considerations, indisputably the
superior court can set aside the order of
such a grant of bail. Such a case belongs to
a different category and is in a separate
realm. While dealing with a case of second
nature, the Court does not dwell upon the
violation of conditions by the accused or
the supervening circumstances that have
happened subsequently. It, on the contrary,
delves into the justifiability and the
soundness of the order passed by the Court.

13. In the case at hand, two aspects
have been highlighted before us. One, the
criminal antecedents of the 2nd Respondent
and second, the non-applicability of the
principles of parity on the foundation that the
accusations against the accused Ashok and
second Respondent are different.

16. The issue that is presented
before us is whether this Court can annul the
order passed by the High Court and curtail
the liberty of the second Respondent? We are
not oblivious of the fact that the liberty is a
priceless treasure for a human being. It is
founded on the bed rock of constitutional
right and accentuated further on human
rights principle. It is basically a natural right.
In fact, some regard it as the grammar of life.
No one would like to lose his liberty or barter
it for all the wealth of the world. People from
centuries have fought for liberty, for absence
of liberty causes sense of emptiness. The
sanctity of liberty is the fulcrum of any
civilized society. It is a cardinal value on
which the civilisation rests. It cannot be
allowed to be paralysed and immobilized.
Deprivation of liberty of a person has
enormous impact on his mind as well as
body. A democratic body polity which is
wedded to rule of law, anxiously guards
liberty. But, a pregnant and significant one,
the liberty of an individual is not absolute.
The society by its collective wisdom through
process of law can withdraw the liberty that it
has sanctioned to an individual when an
individual becomes a danger to the collective
and to the societal order. Accent on
individual liberty cannot be pyramided to
that extent which would bring chaos and
anarchy to a society. A society expects
responsibility and accountability from the
member, and it desires that the citizens
should obey the law, respecting it as a
cherished social norm. No individual can
make an attempt to create a concavity in the
stem of social stream. It is impermissible.
Therefore, when an individual behaves in a
disharmonious
manner
ushering
in
disorderly
things
which
the
society
disapproves, the legal consequences are
bound to follow. At that stage, the Court has
a duty. It cannot abandon its sacrosanct
obligation and pass an order at its own whim
or caprice. It has to be guided by the
established parameters of law."

36. In the case of Mahipal Vs. Rajesh
Kumar Alias Polia and Anr., (2020) 2
SCC 118, the Apex Court in paragraph 14
has observed as under:-
306 INDIAN LAW REPORTS ALLAHABAD SERIES

14.The provision for an accused to
be released on bail touches upon the liberty of
an individual. It is for this reason that this
Court does not ordinarily interfere with an
order of the High Court granting bail.
However, where the discretion of the High
Court to grant bail has been exercised without
the
due
application
of
mind
or
in
contravention of the directions of this Court,
such an order granting bail is liable to be set
aside. The Court is required to factor, amongst
other things, a prima facie view that the
accused had committed the offence, the nature
and gravity of the offence and the likelihood of
the accused obstructing the proceedings of the
trial in any manner or evading the course of
justice. The provision for being released on
bail draws an appropriate balance between
public interest in the administration of justice
and the protection of individual liberty
pending adjudication of the case. However,
the grant of bail is to be secured within the
bounds of the law and in compliance with the
conditions laid down by this Court. It is for
this reason that a court must balance
numerous factors that guide the exercise of the
discretionary power to grant bail on a case by
case basis. Inherent in this determination is
whether, on an analysis of the record, it
appears that there is a prima facie or
reasonable cause to believe that the accused
had committed the crime. It is not relevant at
this stage for the court to examine in detail the
evidence on record to come to a conclusive
finding.

37. This Court also in the case of
Mokhtar Ansari (supra) after considering
long line of decisions has refused to grant bail
to the applicant keeping in view that the
applicant has the criminal history of 54 cases
to his credit.

38. Now coming to the facts of the
present case, as per counter affidavit, the
applicant has criminal history of 48 cases
including the present case. The cases
pertaining
to
criminal
history
are
reproduced herein below: