# Jay Kant Bajpai @ Jay v. State of U.P

- **Citation:** (2023) 6 ILRA 66
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-30
- **Case number:** Criminal Misc. First Bail Application No. 30712 of 2021
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jay-kant-bajpai-jay-v-state-of-u-p-50342
- **Pages:** 13

## Headnote

A. Criminal Law - Bail - The Criminal Law
Amendment Act - Section 7 -The Explosive
Substance Act, 1908 - Section 3⁄4 - The
Evidence Act, 1872 - Section 32(3) - The
totality of the material gathered by the
investigating agency and presented along
with the report and including the case
diary, is required to be reckoned and not
by analysing individual pieces of evidence
or circumstance. In any case, the question
of discarding the document at this stage,
on the ground of being inadmissible in
evidence, is not permissible. For, the issue
of admissibility of the document/evidence would
be a matter for trial. The Court must look at the
contents of the document and take such
document into account as it is. (Para 18)

St.ments u/s 161 of Cr.P.C. may not be
admissible in evidence but are relevant in
considering the prima facie case against an
accused in an application for grant of bail in a
case of grave offence. (Para 20)

B. Section 32 of Evidence Act makes it
clear that the St.ment made by a dead
person has been legally recognized and
can be used in evidence even though it
does not relate to the cause of his death.
It is to be kept in mind that a final
decision cannot be taken at this stage
since it will be considered by the trial
court
when
making
appreciation
of
evidence available on record. (Para 25)

Therefore, the St.ment made by main accused
Vikas Dubey will be considered prima facie to
indicate
the
involvement
of
the
present
applicant in the Vikroo massacre. (Para 26)

C. While granting bail must focus on the
role of the accused in deciding the aspect
of parity. Parity cannot be the sole ground
to decide the bail application and the case
of each and every accused is to be
examined in accordance with the facts
circumstances of the case. Merely observing
that another accused who was granted bail was
armed with a similar weapon is not sufficient to
determine whether a case for the grant of bail
on the basis of parity has been established. In
deciding the aspect of parity, the role attached
to the accused, their position in relation to the
incident and to the victims is of utmost
importance. (Para 16, 34)

In the present case and the complicity of the
accused about his involvement in the crime, the
present applicant is not entitled for releasing
him on bail on the ground of parity. (Para 35)

D. Criminal antecedents of the accused
cannot be ignored while deciding bail
application,
discretionary
powers
of
Courts to grant bail must be exercised in a
judicious manner in case of a habitual
offender. (Para 39, 40)

The applicant has criminal history of as much as
14 cases to his credit from the year 2010
including the cases of the nature of heinous
offences including Ss. 395, 302, 307 I.P.C.,
Gangster Act, Explosive Act and N.S.A. had also
been
imposed
against
the
applicant.
It
demonstrates that the applicant has been
involved in certain heinous offences and he is a
hardened criminal. If he is released on bail it will
give him an opportunity to temper the
witnesses. The criminal history of the applicant
is to be taken into consideration while releasing
him on bail. (Para 37, 42)
6 All. Jay Kant Bajpai @ Jay Vs. State of U.P.
67
The co-accused Sushil Kumar Tiwari against
whom the present applicant is claiming the
parity had criminal history of four cases while
the applicant has a criminal history of 14 cases
to his credit. Therefore, the applicant cannot
claim parity on this score also. (Para 41)

E. U.P. Dacoity Affected Areas Act, 1983:
Section 10 - No person accused or
convicted of a scheduled offence shall, if
in custody be released on bail or on his
own bonds unless (a) The prosecution has
been given an opportunity to oppose the
application for bail, and (b) Where the
prosecution opposes the application for
bail, the court is satisfied that there are
reasonable grounds for believing that he
is not guilty of such offence......"

It is clear that the nature of the offence and
amount of culpabil

## Text

_Characters 0–39,852 of 45,756. This is a partial read: ask again with offset=39852 for what follows._

66 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 6 ILRA 66
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.05.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Criminal Misc. First Bail Application No. 30712 of
2021

Jay Kant Bajpai @ Jay ...Applicant
Versus
State of U.P. ...Opposite Parties

Counsel for the Applicant:
Sri Deepak Singh, Sri Nazrul Islam Jafri
(Senior Adv.), Sri Shiva Kant Dixit

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Bail - The Criminal Law
Amendment Act - Section 7 -The Explosive
Substance Act, 1908 - Section 3⁄4 - The
Evidence Act, 1872 - Section 32(3) - The
totality of the material gathered by the
investigating agency and presented along
with the report and including the case
diary, is required to be reckoned and not
by analysing individual pieces of evidence
or circumstance. In any case, the question
of discarding the document at this stage,
on the ground of being inadmissible in
evidence, is not permissible. For, the issue
of admissibility of the document/evidence would
be a matter for trial. The Court must look at the
contents of the document and take such
document into account as it is. (Para 18)

St.ments u/s 161 of Cr.P.C. may not be
admissible in evidence but are relevant in
considering the prima facie case against an
accused in an application for grant of bail in a
case of grave offence. (Para 20)

B. Section 32 of Evidence Act makes it
clear that the St.ment made by a dead
person has been legally recognized and
can be used in evidence even though it
does not relate to the cause of his death.
It is to be kept in mind that a final
decision cannot be taken at this stage
since it will be considered by the trial
court
when
making
appreciation
of
evidence available on record. (Para 25)

Therefore, the St.ment made by main accused
Vikas Dubey will be considered prima facie to
indicate
the
involvement
of
the
present
applicant in the Vikroo massacre. (Para 26)

C. While granting bail must focus on the
role of the accused in deciding the aspect
of parity. Parity cannot be the sole ground
to decide the bail application and the case
of each and every accused is to be
examined in accordance with the facts
circumstances of the case. Merely observing
that another accused who was granted bail was
armed with a similar weapon is not sufficient to
determine whether a case for the grant of bail
on the basis of parity has been established. In
deciding the aspect of parity, the role attached
to the accused, their position in relation to the
incident and to the victims is of utmost
importance. (Para 16, 34)

In the present case and the complicity of the
accused about his involvement in the crime, the
present applicant is not entitled for releasing
him on bail on the ground of parity. (Para 35)

D. Criminal antecedents of the accused
cannot be ignored while deciding bail
application,
discretionary
powers
of
Courts to grant bail must be exercised in a
judicious manner in case of a habitual
offender. (Para 39, 40)

The applicant has criminal history of as much as
14 cases to his credit from the year 2010
including the cases of the nature of heinous
offences including Ss. 395, 302, 307 I.P.C.,
Gangster Act, Explosive Act and N.S.A. had also
been
imposed
against
the
applicant.
It
demonstrates that the applicant has been
involved in certain heinous offences and he is a
hardened criminal. If he is released on bail it will
give him an opportunity to temper the
witnesses. The criminal history of the applicant
is to be taken into consideration while releasing
him on bail. (Para 37, 42)
6 All. Jay Kant Bajpai @ Jay Vs. State of U.P.
67
The co-accused Sushil Kumar Tiwari against
whom the present applicant is claiming the
parity had criminal history of four cases while
the applicant has a criminal history of 14 cases
to his credit. Therefore, the applicant cannot
claim parity on this score also. (Para 41)

E. U.P. Dacoity Affected Areas Act, 1983:
Section 10 - No person accused or
convicted of a scheduled offence shall, if
in custody be released on bail or on his
own bonds unless (a) The prosecution has
been given an opportunity to oppose the
application for bail, and (b) Where the
prosecution opposes the application for
bail, the court is satisfied that there are
reasonable grounds for believing that he
is not guilty of such offence......"

It is clear that the nature of the offence and
amount of culpability is serious and heinous.
The applicant has criminal history of cases of
heinous nature to his credit. The applicant is
actively involved in the incident in which eight
police personnel including the Circle Officer,
Bilhore, were done to death mercilessly and
seven others police personnel received grievous
injury. The applicant actually assisted the main
accused Vikas Dubey by providing him Rs. 2
lakh and 25 cartridges to be used in the
incident. Further, the applicant also promised
and provided vehicles to slain accused Vikas
Dubey for his safe journey to his next
destination after committing one of the most
heinous crimes. Therefore, no sufficient reason
has been found to allow the bail application of
the present applicant. (Para 45)

Bail application rejected. (E-4)

Precedent followed:

1. Manish Vs St. of U.P., 2022 SCC OnLine All
429 (Para 16)

2. Kripa Shanker Singh Vs St. of U.P., 2017 SCC
OnLine All 852 (Para 16)

3. National Investigation Agency Vs Zahoor
Ahmad Shah Watali, (2019) 5 SCC Page 1 (Para
18)

4. Indresh Kumar Vs St. of U.P. & anr. (Para 20)
5. Kalyan Chandra Sarkar Vs Rajesh Ranjan @
Pappu Yadav & anr., (2004) 7 SCC 528 (Para
22)

6. Ramesh Bhavan Rathod Vs Vishanbhai
Hirabhai Makwana, 2021 SCC online SC 353
(Para 34)

7. Neeru Yadav Vs St. of U.P. & anr., (2015) 3
SCC 527 (Para 39)

8. Neeraj Yadav Vs St. of U.P., (2016) 15 SCC
422 (Para 40)

(Delivered by Hon'ble Mayank Kumar
Jain, J.)

1. Heard Sri Nazrul Islam Jafri (Senior
Advocate) assisted by Sri Deepak Singh
and Sri Shiva Kant Dixit, learned counsel
for the applicant, Sri Manish Goyal,
learned
Additional
Advocate
General
assisted by Sri Abhijeet Mukherjee for the
State.

2. Perused the record.

3. Present bail application has been
filed on behalf of the applicant Jay Kant
Bajpai @ Jay in Case Crime No. 192 of
2020, under Sections 147, 148, 149, 332,
353, 333, 307, 302, 396, 412, 120-B, 34,
504, 506 of I.P.C.; Section 7 of the
Criminal Law Amendment Act and Section
3/4 of Explosive Substance Act, Police
Station Chaubeypur, District Kanpur Nagar
with the prayer to enlarge him on bail
during the trial.

4. As
per
the
version
of
the
prosecution, case crime No. 191/2020 u/s
147,148,504,323,364,342,307
IPC
and
Section 7 Criminal Law Amendment Act
was registered at Police Station Chaubepur,
District Kanpur Outer on 02.07.2020 at
23:52 PM against Vikas Dubey and 4 other
named accused on the basis of First
68 INDIAN LAW REPORTS ALLAHABAD SERIES
Information Report lodged by one Rahul
Tiwari. He alleged that on 01.07.2020 at
12:30 PM, the accused beat him up. The
accused kidnapped him and confined him
in a room. He somehow escaped from
there. When he reached Vikroo turn, Bela
road, Vikas
Dubey
fired
upon
him
indiscriminately. He did not sustain any
injury.

5. In order to arrest the named accused
in the aforesaid FIR, the police party led by
SHO Chaubepur, Vinay Kumar Tiwari,
reached Vikroo. When they reached at the
gate of the house of accused Vikas Dubey,
named and unnamed accused in the present
F.I.R. fired indiscriminately upon the police
officers with firearm weapons. In this heart
wrenching incident, 8 police personnel were
brutally done to death including Circle officer
and 7 police personnel got serious injuries.
Accused persons looted the arms from the
police personnel. The first information report
of the incident was lodged by Sub Inspector
Vinay Kumar Tiwari, the then SHO, P.S.
Chaubepur,
District
Kanpur
Outer
on
03.07.2020 at 5:30 AM against 21 named and
60-70 unnamed accused.

6.
During
the
course
of
the
investigation, on the basis of the statement
of the main accused Vikas Dubey, it was
revealed that the applicant was present in a
meeting with Vikas Dubey and other
accused
persons
in
the
evening
of
02.07.2020 to carve out a plan to commit
the murder of police persons who were
scheduled to approach the slain leader
Vikas Dubey to arrest him. The applicant
had provided money and ammunition to the
main accused Vikas Dubey. To provide safe
passage to slain accused Vikas Dubey to
perform journey, the applicant promised to
provide vehicles after killing the police
party.

7. These facts were narrated by Vikas
Dubey, the main accused of Vikroo
massacre, when he was being brought to
Kanpur Nagar from Ujjain, where he was
arrested by the Madhya Pradesh Police. He
was interrogated by the Investigating
Officer during his journey from Ujjain to
Kanpur Nagar. The statement of Vikas
Dubey was noted in the case diary by the
investigating officer. Apart from this, coaccused Prashant Kumar Shukla and Vipul
Dubey also stated active involvement of the
present applicant in the Vikroo massacare.
The statement of the applicant was also
recorded by the investigating officer in
which he admitted that he had provided
money and ammunitions to Vikas Dubey.
He also provided vehicle to him for his safe
journey after the incident.

8. It has been argued by the learned
counsel for the applicant that he is innocent
and he has been falsely implicated in the
present case. The applicant is not named in
the first information report. None of the
witness referred the involvement of the
applicant in the incident that happened on
02.07.2020 at Vikroo. The applicant has
been made accused in the present case only
on the basis of his confessional statement
and the statement of co-accused Prashant
Shukla which were recorded in police
custody. The statements of applicant and
co-accused
Prashant
Shukla
are
not
admissible in evidence and they cannot be
used against the applicant.

9. It is further contended that the
applicant was not physically present at the
place of where the incident took place.
Instead he was in an engagement party in a
hotel in Kanpur. When he came to know
about the incident through T.V. and other
sources, he himself called the police. The
applicant also provided the video footage
6 All. Jay Kant Bajpai @ Jay Vs. State of U.P.
69
of the party to the police. The applicant had
met Vikas Dubey only once or twice in
parties. Apart from this he had no relation
with him. It is further submitted that the
applicant is a political and social worker
and he did tremendous work during
COVID-19 induced lockdown. Due to local
rivalry, the enemies of the applicant had
introduced the name of the applicant to
police and applicant has been made a
scapegoat in the present case.

10. It is further urged that there is no
evidence available on record that the
applicant entered into a conspiracy or
provided any assistance to the main
accused Vikas Dubey. The applicant never
provided money and ammunition for
Vikroo incident. There is no eye witness
account to prove this fact that the applicant
had gone to the house of co-accused Vikas
Dubey or participated in any meeting prior
to the alleged incident dated 02.07.2020. It
is further submitted that nothing has been
recovered either from the possession or
from pointing out of the applicant relating
to the aforesaid incident.

11. It is further submitted that the
charge sheet against the applicant has been
submitted on 01.10.2020. The applicant has
criminal history of 11 cases which have
been described and properly explained in
para-32 of the affidavit filed in support of
the bail application. Five cases were lodged
by the police against the applicant after the
alleged incident. It is further submitted that
identically placed co-accused Sushil Kumar
Tiwari, who was also not named in the first
information report, has already been
granted bail by the co-ordinate Bench of
this Court vide order dated 01.11.2022
passed in Criminal Misc. Bail Application
No. 4093 of 2021. There is no cogent
evidence against the applicant available on
record, therefore, he is also entitled to be
released on bail on the ground of parity. It
is further submitted that applicant is
languishing in jail since 20.07.2020 and
that in case he is released on bail, he will
not misuse the liberty of bail and will
cooperate in trial.

12. Per contra, Sri Manish Goyal,
learned
Additional
Advocate
General
assisted by Sri Abhijeet Mukherjee for the
State has opposed the prayer for grant of
bail to the present accused/applicant and
argued that the historic incident is known
as "Vikroo incident'' in which eight police
personnel were shot dead and seven
received grievous injuries. The official
arms were also looted in this incident. The
name of the present applicant being one of
the accused in the present case, surfaced in
the statement of one Prashant Kumar
Shukla who informed that the applicant
was having cordial relation with the main
accused Vikas Dubey. On his dictate the
accused/ applicant visited the house of the
accused Vikas Dubey in the evening of
02.07.2020 where the accused-applicant
provided financial help amounting to Rs. 2
lakhs and gave 25 cartridges of the firearms in front of co-accused Prashant
Kumar Shukla. The applicant also assured
Vikas Dubey to provide vehicle for his safe
journey after the incident. The accusedapplicant parked his vehicle near Shivli
which was intercepted by the police and
one car with fabricated pass of the
assembly pasted on it was recovered. The
accused-applicant had full knowledge of
the plan of the main accused for the
commission of heinous offence to attack
the police party in the intervening night of
2/3.07.2020 in village Vikroo in which 8
police personnel including Circle officer,
Bilhaur were mercilessly shot dead and 7
police personnel received grievous injuries.
70 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It is further contended that after
the arrest of the accused-applicant, he
confessed his guilt that he had relation with
the main accused Vikas Dubey and also one
day before the incident i.e. on 01.07.2020,
he gave Rs. 2 lakhs to him. He also gave
arms and ammunitions and provided
vehicle for his safe journey to his
destination. This fact is also supported with
the confessional statement of co-accused
Prashant Kumar Shukla. It is further
contended that the applicant is a habitual
offender. After the investigation a charge
sheet came to be filed against him.

14. It is also contended that bail
applications of other co-accused namely
Rekha Agnihotri and Khushi Dubey have
already been rejected by this Court vide
orders dated 16.07.2021 passed in Criminal
Revision No. 113 of 2021 and order dated
04.10.2021 passed in Criminal Misc. Bail
Application
No.
14950
of
2021
respectively. It is also contended that the
statement of Vikas Dubey which was
recorded during his journey from Ujjain to
Kanpur Nagar has also been considered in
the aforesaid bail orders. It is further
contended that the history of the applicant
itself demonstrates that he is consistently
committing heinous offences, therefore, he
is not entitled for any sympathy from this
Court. The accused-applicant is a hardened
criminal and there is every likelihood that if
the applicant is enlarged on bail, he may
indulge in commission of crime and shall
make his best efforts to pressurize the
witnesses to depose in his favour.

15. It is further contended that so far
as the bail of co-accused Sushil Kumar
Tiwari is concerned, he has criminal history
of four cases to his credit and he did not
have any previous criminal history whereas
the present accused-applicant is having
criminal history since 2010 and therefore,
he is not entitled to any bail on grounds of
parity with the bail order passed in favour
of co-accused Sushil Kumar Tiwari. It is
relevant to note that parity alone would not
be a ground for any accused. The accusedapplicant has played different role in
commission of crime as compared to the
co-accused Sushil Kumar Tiwari. It is also
contended that bail applications of coaccused Vinay Kumar Tiwari, K. K.
Sharma and Uma Shankar Yadav @ Tanke
have been rejected by this Court vide
orders dated 21.09.2021 passed in Criminal
Misc. Bail Application No. 48444 of 2020
and Criminal Misc. Bail Application No.
49354 of 2020 and vide order dated
30.09.2022 passed in Criminal Misc. Bail
No. 44196 of 2022 respectively. It is also
submitted that this Court while dealing
with the Crl. Misc. Bail Application No.
48444 of 2020 observed that the statement
of main accused Vikas Dubey is an
admissible evidence under Section 32 (2)
of the Indian Evidence Act in which he
discloses the name and the active role of
the
present
accused-applicant
in
commission of the aforesaid crime.

16. It is also argued by the learned
Additional Advocate General that parity
can not be a sole ground to decide the bail
application and the case of each and every
accused is to be examined in accordance
with the facts and circumstances of the
case. He relied upon Manish Vs. State of
U.P., 2022 SCC OnLine All 429 and
Kripa Shnker Singh Vs. State of U.P.
2017 SCC OnLine All 852.

17. The learned counsel for the
applicant rebutted the aforesaid arguments
by stating that the Investigating officer did
not collect the location of applicant which
could prove the fact that on the evening of
6 All. Jay Kant Bajpai @ Jay Vs. State of U.P.
71
02.07.2020, the applicant had given Rs. 2
lakh and 25 cartridges of fire-arm to the coaccused Vikas Dubey. It is totally wrong to
allege that the applicant had any prior
knowledge of planning of the incident
dated 02.07.2020. So far as the fabricated
assembly pass pasted on the vehicle is
concerned, this pass was pasted on the
vehicle by the police after incident. It is
further submitted that the co-accused
Vishnu Kashyap having identical role, has
already been granted bail by the coordinate bench of this Court vide order
dated 06.05.2022 passed in Criminal Misc.
Bail Application No. 45567 of 2021. It is
further
submitted
that
the
criminal
antecedents of the applicant were divided
into two parts: eight cases registered
against him after 02.07.2020 and other
cases
prior
to
the
incident
dated
02.07.2020. N.S.A. proceedings were very
well challenged by the applicant by filing
proper objection substantiated by material
evidence before the N.S.A. Committee.
However, the malicious act of the State has
been nullified due to lapse of time.

18. The Hon'ble Supreme Court in
National
Investigation
Agency
Vs.
Zahoor Ahmad Shah Watali (2019) 5
SCC Page 1 has laid down matters to be
considered for deciding an application for
bail as follows:-

"(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
charge;

(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 tampered with; and

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

The Hon'ble Apex Court further
observed that:-

"23. By virtue of the proviso to
sub-section (5), it is the duty of the Court to
be satisfied that there are reasonable
grounds for believing that the accusation
against the accused is prima facie true or
otherwise. Our attention was invited to the
decisions of this Court, which has had an
occasion to deal with similar special
provisions in TADA and Mcoca. The
principle underlying those decisions may
have some bearing while considering the
prayer for bail in relation to the offences
under the 1967 Act as well. Notably, under
the special enactments such as TADA,
Mcoca and the Narcotic Drugs and
Psychotropic Substances Act, 1985, the
Court is required to record its opinion that
there are reasonable grounds for believing
that the accused is "not guilty" of the
alleged offence. There is a degree of
difference between the satisfaction to be
recorded by the Court that there are
reasonable grounds for believing that the
accused is "not guilty" of such offence and
the satisfaction to be recorded for the
purposes of the 1967 Act that there are
reasonable grounds for believing that the
accusation against such person is "prima
facie" true. By its very nature, the
expression "prima facie true" would mean
that the materials/evidence collated by the
investigating agency in reference to the
accusation against the accused concerned
in the first information report, must prevail
until
contradicted
and
overcome
or
disproved by other evidence, and on the
face of it, shows the complicity of such
72 INDIAN LAW REPORTS ALLAHABAD SERIES
accused in the commission of the stated
offence. It must be good and sufficient on
its face to establish a given fact or the
chain of facts constituting the stated
offence, unless rebutted or contradicted. In
one sense, the degree of satisfaction is
lighter when the Court has to opine that the
accusation is "prima facie true", as
compared to the opinion of the accused
"not guilty" of such offence as required
under the other special enactments. In any
case, the degree of satisfaction to be
recorded by the Court for opining that there
are reasonable grounds for believing that
the accusation against the accused is prima
facie true, is lighter than the degree of
satisfaction to be recorded for considering
a discharge application or framing of
charges in relation to offences under
UAPA."

The Hon'ble Apex Court further
observed that:-

"27. For that, the totality of the
material gathered by the investigating
agency and presented along with the report
and including the case diary, is required to
be
reckoned and not by analysing
individual
pieces
of
evidence
or
circumstance. In any case, the question of
discarding the document at this stage, on
the ground of being inadmissible in
evidence, is not permissible. For, the issue
of admissibility of the document/evidence
would be a matter for trial. The Court
must look at the contents of the document
and take such document into account as it
is."

19. The learned counsel for the
applicant argued that the statements of
present applicant and other co-accused
namely
main
accused
Vikas
Dubey,
Prashant Shukla and Vipul Dubey were
made before the police, therefore, they are
not admissible evidence.

20. The Hon'ble Apex Court in
Indresh Kumar Vs. State of Uttar
Pradesh and Another while cancelling the
bail order passed by the High Court has
observed that:-

"The High Court has ignored the
material on record including incriminating
statements of witnesses under Section
164/161 Cr.P.C. Statements under Section
161 of Cr.p.C. may not be admissible in
evidence but are relevant in considering the
prima facie case against an accused in an
application for grant of bail in a case of
grave offence."

21. The learned A.A.G. Sri Manish
Goyal
while
referring
the
above
observation made by the Hon'ble Apex
Court submitted that the statement recorded
under Section 161 Cr.P.C. prima facie
discloses the active role of present
applicant in the Vikroo massacre.

22. So far as the arguments of learned
counsel for the applicant that the statement
of Vikas Dubey cannot be read against the
applicant, because firstly it is made before
a police officer and secondly the person
who made such statement cannot be found
to be produced in Court since he is dead, is
concerned, the learned A.A.G. relied upon
the observation made by Hon'ble Apex
Court in Kalyan Chandra Sarkar Vs.
Rajesh Ranjan @ Pappu Yadav and
Another (2004) 7 SCC 528. The Hon'ble
Apex Court observed that:-

"The next argument of learned
counsel for the respondent is that prima
facie the prosecution has failed to produce
any material to implicate the respondent in
the crime of conspiracy. In this regard he
submitted that most of the witnesses have
already turned hostile. The only other
6 All. Jay Kant Bajpai @ Jay Vs. State of U.P.
73
evidence available to the prosecution to
connect the respondent with the crime is an
alleged confession of the co-accused which
according to the learned counsel was
inadmissible in evidence. Therefore, he
contended that the High Court was justified
in granting bail since the prosecution has
failed to establish even a prima facie case
against the respondent. From the High
Court order we do not find this as a good
ground for granting bail. Be that as it may,
we think this argument is too premature for
us to accept. The admissibility or otherwise
of the confessional statement and the effect
of evidence already adduced by the
prosecution and the merit of the evidence
that may be adduced hereinafter including
that of the witnesses said to be recalled are
all matters to be considered at the stage of
the trial."

23. Further, learned A.A.G. contended
that the statement of the main accused
Vikas Dubey is a statement of a dead
person who cannot be found for giving
evidence. Therefore, his statement is to be
considered against the present applicant
under Section 32 (3) of the Evidence Act,
1872.

24. Section 32 of Evidence Act, 1872
is quoted below:-

"32- Cases in which statement of
relevant fact by person who is dead or
cannot be found, etc ., is relevant. -
Statements, written or verbal, of relevant
facts made by a person who is dead, or who
cannot be found, or who has become
incapable of giving evidence, or whose
attendance cannot be procured without an
amount of delay or expense which, under
the circumstances of the case, appears to
the Court unreasonable, are themselves
relevant facts in the following cases:-

1. when it relates to cause of
death. -When the statement is made by a
person as to the cause of his death, or as to
any of the circumstances of the transaction
which resulted in his death, in cases in
which the cause of that person's death
comes into question. Such statements are
relevant whether the person who made
them was or was not, at the time when they
were made, under expectation of death, and
whatever may be the nature of the
proceeding in which the cause of his death
comes into question.

2. or is made in course of
business. -When the statement was made
by such person in the ordinary course of
business, and in particular when it consists
of any entry or memorandum made by him
in books kept in the ordinary course of
business,
or
in
the
discharge
of
professional duty; or of an acknowledgment
written or signed by him of the receipt of
money, goods, securities or property of any
kind; or of a document used in commerce
written or signed by him; or of the date of a
letter or other document usually dated,
written or signed by him.

3 or against interest of maker. -
When
the
statement
is
against
the
pecuniary or proprietary interest of the
person making it, or when, if true, it would
expose him or would have exposed him to a
criminal prosecution or to a suit for
damages.

4. or gives opinion as to public
right or custom, or matters of general
interest. -When the statement gives the
opinion of any such person, as to the
existence of any public right or custom or
matter of public or general interest, of the
existence of which, if it existed he would
have been likely to be aware, and when
such statement was made before any
controversy as to such right, custom or
matter had arisen.
74 INDIAN LAW REPORTS ALLAHABAD SERIES

5. or relates to existence of
relationship. -When the statement relates
to the existence of any relationship 25 [by
blood, marriage or adoption] between
persons as to whose relationship 25 [by
blood, marriage or adoption] the person
making the statement had special means of
knowledge, and when the statement was
made before the question in dispute was
raised.

6. or is made in will or deed
relating to family affairs. -When the
statement relates to the existence of any
relationship25[by
blood,
marriage
or
adoption] between persons deceased, and
is made in any will or deed relating to the
affairs of the family to which any such
deceased person belonged, or in any family
pedigree, or upon any tombstone, family
portrait, or other thing on which such
statements are usually made, and when
such statement was made before the
question in dispute was raised.

7. or in document relating to
transaction mentioned in section 13, clause
(a). -When the statement is contained in
any deed, will or other document which
relates to any such transaction as is
mentioned in section 13, clause (a).

8. or is made by several persons,
and expresses feelings relevant to matter in
question. -When the statement was made
by a number of persons, and expressed
feelings or impressions on their part
relevant to the matter in question."

25. Therefore, upon reading the
Section 32 of Evidence Act, it is clear that
the statement made by a dead person has
been legally recognized and can be used in
evidence even though it does not relate to
the cause of his death. It is to be kept in
mind that a final decision cannot be taken
at this stage since it will be considered by
the trial court when making appreciation of
evidence available on record.

26. In view of the above observations
and legal propositions, the statement made
by main accused Vikas Dubey will be
considered prima facie to indicate the
involvement of the present applicant in the
Vikroo massacre.

27. The statement of main accused
Vikas
Dubey,
as
recorded
by
the
Investigating Officer during transit when
Vikas Dubey was arrested in Ujjain and he
was being brought to Kanpur Nagar, is
available in the case diary which is
reproduced here-in-below:-

"मैनें अपने नजदीकी घर की औरतों रेखा अग्नीहोत्री,
क्षमा पत्नी संजय दुबे उर्थ संजू, खुशी पत्नी अमर दुबे शांभत देवी
पत्नी रमेश को पुभलस को चोर डकैत कहकर भचल्लाने व गांव वालों
को इकठ्ठा करने के भलये लगा रखा था। मेरे मामा की बहु मनु पाण्डेय
पत्नी सोनू पाण्डेय को िी प्लाभनंग की पूरी जानकारी थी तथा र्ोन
से सबको सजग कराने व सूचना देने के भलये मैनें बता रखा था।
इसके बाद मैं िागकर भशवली चला गया था इस दौरान मेरे अभत
नजदीकी जयकान्त उर्थ जय बाजपेई पुत्र लक्ष्मीकान्त बाजपेई भन०
ब्रह्मनगर और प्रशान्त शुक्ला उर्थ डब्बू भन० आयथ नगर कोहना ने
गाडी व पैसा देकर मेरी मदद की उन्हें िी मेरी प्लाभनंग की कुछ कुछ
जानकारी थी। जय वाजपेई से मैनें कारतूस िी भलया था। वहां से भर्र
बचते बचाते उज्जैन महाकाल मभन्दर आ गया था। सड़क पर
जे०सी०बी०लगाकर जाम करने के भलये मैनें सुल्तान अहमद भन०
कस्बा चौबेपुर की जे०सी०बी० जो मेरे यहां करीब डेढ़ माह से काम
कर रही थी को रात में करीब 12 बजे अपने मामा राजाराम उर्थ
रामकुमार पाण्डेय को िेजकर ड्राइवर राहुल पाल से मंगवाया था
और सड़क पर खड़ी करके सड़क अवरुद्ध करा भदया था ताभक
पुभलस एका एक हमारे घर तक ना आ सके।"

28. The statement of the co-accused
Prashant Shukla, who specifically stated
about the involvement of the present
applicant in the incident dated 02.07.2020,
recorded by the Investigating Officer is
reproduced here-in-below:-
6 All. Jay Kant Bajpai @ Jay Vs. State of U.P.
75

"ब्यान अभियुक्त प्रशान्त शुकला उर्थ डब्बू पुत्र
श्रीकृष्ण कान्त शुक्ला भनवासी 8/119 आयथ नगर थाना कोहना
कानपुर नगर उम्र करीब 47 विथ ने पूछने पर बताया भक साहब विथ
2005 में मेरी शादी िाम भवकरू में ओम प्रकाश दुबे की पुत्री रंजना
दुबे से हुई तिी से मेरी जान पहचान भवकास दुबे से हो गई थी
क्योभक भवकास दुबे मेरी पत्नी के पररवार का ही है भवकास दुबे कई
बार जेल गया तो मैनें इसकी मदद की भदनांक 02.07.2020 को
वाट्स अप काल द्वारा भवकास दुबे ने मुझे बताया भक मुझे पुभलस
वालों को भिकाने लगाना है तुम मेरी मदद करो तथा जयकान्त
वाजयपेयी को अपने साथ लेकर मेरे गांव आ जाओ तो मैं जयकान्त
बाजपेयी को लेकर भदनांक 02.07.2020 को शाम के समय िाम
भवकरु गया था वहां पर जयकान्त बाजपेयी ने भवकास दुबे 2 लाख
रूपये व 25 कारतूस भदये थे मैनें िी अपने पास से 50 हजार रूपये
भवकास दुबे को भदये थे ताभक जरूरत पड़ने पर मुकदमा आभद में
वकील आभद को देने में काम आ सके, भवकास दुबे ने हम बताया
था भक पुभलस वालों ने मुझे पकड़ने का प्लान बनाया है परन्तु जैसे
ही पुभलस वाले मेरे घर पर आयेगे मैं उनको मौत की नींद सुला दूंगा
एक को िी भजंदा नहीं जाने दूंगा तब मैनें कहा था भक िीक रहेगा हम
से जो मदद होगी हम करेगे तो भवकास दुबे ने कहा भक जब मैं खबर
िेजूंगा तो जयकान्त बाजपेयी की तीनों गाभडयां लेकर जहां मैं
बताऊगा वहां आ जाना हमनें कहा भक िीक है हम आ जायेगे।
इसके बाद हम लोग वहां से चले आये थे। अगले भदन सुबह खबर
भमली थी भक भवकास दुबे ने 8 पुभलस वालों के मौत के घाट उतार
भदया है उसके बाद भदनांक 04.07.2020 को मुझे सूचना भमली
थी भवकास दुबे ने जयकान्त वाजपेयी की गाभड़यां भशवली में मंगाई है
तो मैनें जयकान्त बाजपेयी को पूरी बात बताई जयकान्त बाजपेयी
गाभड़यां लेकर भवकास दुबे व उसके गैंग को लेने जा रहा था भक
पुभलस की सभियता के चलते वह गाडी कानपुर नगर से बाहर नही
ले जा पाया तथा गाभड़यों को डर के मारे काकादेव क्षेत्र में छोड़कर
चला आया था साहब गलती हो गयी जो मैनें भवकास दुबे का
िडयन्त्र में साथ भदया।"

29. Further the statement of the coaccused Vipul Dubey was also noted down
by the investigating officer about the active
involvement of the present applicant in the
aforesaid incident. The statement of coaccused Vipul Dubey is reproduced herein-below:-

" भवकास दुबे हमारे खानदान के थे. मीभटंग में
तय योजना के अनुसार भवकास दुबे ने असलाह कारतूस व बमों
की व्यवस्था की व हम सिी लोगों को असलाह कारतूस
उपलब्ध कराये गये मैनें भवकास दुबे से भमलते हुये व काररतूस
असलाह व पैसे देते हुये भवकास पभण्डत जी के पररभचत
जयकान्त वाजपेयी, प्रशान्त शुक्ला, अरभवन्द भत्रवेदी उर्थ गुड्डन
व सुशील भतवारी योजना में शाभमल रहे। असलाह व पैसे व
कारतूस उपलब्ध कराये तथा िभवष्य में िी पुरी सहायता करने
का वचन भदया था। अक्सर जयकान्त वाजपेयी, प्रशान्त शुक्ला,
अरभवन्द भत्रवेदी उर्थ गुड्डन व सुशील भतवारी भवकास दुबे के
पास आया करते थे तथा यह चारों लोग भवकास दुबे के रूपयों
को ब्याज पर लोगों को भदया करते थे। इन चारों लोगों की
भवकास दुबे से बहुत अभधक घभनष्ठता थी। यह चारों लोग उस
समय मौजूद नही थे जब हम लोगों द्वारा पुभलस वालों पर
र्ायररंग की जा रही थी।"

30. The confessional statement of the
applicant is reproduced here as under:-

"ब्यान अभियुक्त जयकान्त बाजपेयी पुत्र स्व०
लक्ष्मीकान्त बाजपेयी भनवासी 111/478 ब्रह्मा नगर थाना
नजीराबाद जनपद कानपुर नगर उम्र करीब 37 विथ ने पूछने पर
बताया भक हम 05 िाई है मेरे माता भपता का स्वगथवास हो गया है
मेरा मो०नं० 9336249793 है मेरे पास ररवाल्वर का लाइसेन्स
है जो मैनें 2008 में भलया था। मेरे भपता जी के भहस्से में 06 बीघा
जमीन आती है। पहले मैं टायर पेन्चर की दुकान करता था विथ
2013 में मेरी मुलाकात प्रशान्त शुक्ला उर्थ डब्बू के माध्यम
भवकास दुबे से हो गई थी भवकास दुबे ने मुझे कुछ पैसा देकर ब्याज
पर पैसे देने काम शुरु करा भदया था, भवकास दुबे को मैं 3 प्रभतशत
पर ब्याज देते था तथा लोगों से 10 प्रभतशत का ब्याज लेते था
इसके बाद मैनें कमेटी डालनी शुरु कर दी थी भजससे मेरा काम िीक
िाक चल भनकला भजससे मैनें 04 मकान अशोक नगर में खरीदे
तथा भजसके अलावा मेरे करीब 56 प्लाट है जो करीब डेढ़ करोड
की कीमत से ज्याद के है उसके बाद मेरा भवकास दुबे से लगातार
भमलना जुलना रहा हम लोग र्ोन से िी आपस में बात करते थे
परन्तु वाट्सकाल या चैट से ज्यादा बाते करते थे भदनांक
01.07.2020 को भवकास दुबे का मेरे पास र्ोन आया भक कुछ
पैसे व कारतूस लेकर मेरे पास आ जाओ मैं भदनांक
02.07.2020 को प्रशान्त शुक्ला उर्थ डब्बू के साथ िाम भवकरु
गया था जहां पर भवकास दुबे हमे भमला भवकास दुबे ने हमें बताया
भक पुभलस मुझे बहुत परेशान कर रही है मुझे पुभलस का काम तमाम
करना है तो हमने कहा भक िीक रहेगा। एक बार पुभलस से भिड गये
तो भर्र हमारी दबंगई पूरे भजले में चलेगी। तो मैनें भवकास दुबे को 2
लाख रूपये नगद व 25 कारतूस ररवाल्वर के भदये थे उसी दौरान
भवकास दुबे ने मुझे व डब्बू को बताया था भक आप दोनों को घटना
76 INDIAN LAW REPORTS ALLAHABAD SERIES
के बाद जब िी मैं सूचना िेजूगा अपनी गाडी िेजनी होगी ताभक हम
सुरभक्षत भनकल सके मेरे पास एक गाड़ी ऑडी भजसका नम्बर UP
78FY 9555जो मैंने प्रमोद कुमार पुत्र कन्हैया लाल भवश्वकमाथ
भनवासी 16/18 न्यू ईदगाह कालोनी थाना नवाबगंज के नाम से
भनकाली थी तथा दूसरी गाड़ी र्ाचूथनर नं० UP 78 EW 7070
है जो मैनें राहुल पुत्र इन्रपाल भन० 193/243 सकरपुर चक
(भकसान नगर) थाना सचेण्डी कानपुर नगर के नाम से भनकाली थी
तथा तीसरी गाडी वरना भजसका नम्बर UP 78 FC 7070 है
जो मैनें कभपल भसंह चौहान पुत्र चन्रिान भसंह भन० 111ए/24
अशोक नगर थाना नजीराबाद के नाम से भनकाली थी तीनों गाभड़यों
की भकश्त मैं स्वयं िरता ह ूँ तथा तीनों मेरे पास ही रहती है। इन
गाभड़यों से भवकास दुबे अक्सर घटना में जाया करता था घटना के
बाद भदनांक 04.07.2020 को डब्बू के माध्यम से मेरे पास
सूचना आई थी भक भवकास दुबे व उसके साभथयों को भशवली से
भदल्ली तक छोड़ना है भजसका कारण मैं इन गाभड़यों को अपने
ड्राइवर से चलवाकर भवकास दुबे के पास ले जा रहा था भक पुभलस
की सभियता देखकर मैं घबरा गया तथा जल्दबाजी में मैनें तीनों
गाभडयों काकादेव क्षेत्र में भवजय नगर चौराहा के पास नम्बर प्लेट
पलट करके लगा दी थी ताकी कोई गाभड़यों को पहचान न पाये
साहब मुझे इस घटना की पूरी जानकारी थी मैनें इस कायथ में भवकास
दुबे की मदद की है मुझसे गलती हो गई है।"

31. Perusal of the statement given by the
main
accused
Vikas
Dubey
to
the
Investigating Officer during his journey from
Ujjain to Kanpur Nagar discloses that Vikas
Dubey referred the present applicant as his
close associate who provided money and
vehicles to assist him to commit the incident
dated 02.07.2020. Similarly, the statement of
co-accused Prashant Shukal also reveals that
Vikas Dubey sought his assistance and asked
him to come to his village along with the
present applicant Jai kant Vajpayee. He
reached village Vikroo accompanied by the
present
applicant
in
the
evening
of
02.07.2020 where the present applicant gave
Rs. 2 lakh and 25 cartridges to Vikas Dubey.
Vikas Dubey directed that the vehicles of
present applicant be made available after the
incident. The co-accused Vipul Dubey also
stated before the Investigating Officer that the
present applicant along with Prashant Shukla,
Arvind Trivedi @ Guddan and Sushil Tiwari
were involved in the planning of the incident.
Money and ammunitions were provided by
them. The present applicant was a frequent
visitor of Vikas Dubey in relation to money
lending business. All these four accused
persons were very close to accused Vikas
Dubey.

32. On the basis of the aforesaid
statements, prima facie it transpires that the
present applicant was well known and was a
trusted person of Vikas Dubey. The main
accused Vikas Dubey invited him along with
the other accused to attend a meeting in the
evening of 02.07.2020 for committing
conspiracy and to further plan to commit the
incident known as Vikroo massacre. During
this meeting, the present applicant provided
money amounting to Rs. 2 lakh and 25
cartridges to the main accused Vikas Dubey
to be used in the crime. Further the present
applicant promised Vikas Dubey he would be
available outside his house to provide him
vehicles for his safe passage after the incident
to his next destination.

33. The learned counsel for the
applicant submitted that since the role of
the applicant is identical to the co-accused
Sushil Kumar Tiwari who has been granted
bail vide order dated 01.11.2022 by this
Court passed in Criminal Misc. Bail
Application No. 4903 of 2021, therefore
the applicant is also entitled to be released
on bail on the grounds of parity. It is
submitted that the co-accused Sushil
Kumar Tiwari was also not named in the
F.I.R. and he was also not present
physically at the place of occurrence at the
time of incident.

34. In Ramesh Bhavan Rathod v.
Vishanbhai Hirabhai Makwana, 2021
SCC onLine SC 353, a two judge Bench of
6 All. Jay Kant Bajpai @ Jay Vs. State of U.P.
77
Supreme Court has held that the High
Court while granting bail must focus on the
role of the accused in deciding the aspect of
parity. This Court observed:

"26....The
High
Court
has
evidently misunderstood the central aspect
of what is meant by parity. Parity while
granting bail must focus upon the role of
the accused.