# Manish (In Jail) v. State of U.P

- **Citation:** (2022) 8 ILRA 271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-06-22
- **Case number:** Criminal Misc. Bail Application No. 24208 of 2022
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manish-in-jail-v-state-of-u-p-48759
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 302 &120(B) - Dying declaration
against the Applicant-Post Mortem-died due to
ante mortem burn injuries.

Bail Application dismissed. (E-9)

List of Cases cited:

1.Birjmani Devi Vs Pappu Kumar & anr. reported
in [2022 4 SCC 497]

## Text

8 All. Manish Vs. State of U.P.
271
the aforesaid crime shall be released on
anticipatory bail till the submission of
police report, if any, under section 173 (2)
Cr.P.C. before the competent court on his
furnishing a personal bond with two
sureties each in the like amount to the
satisfaction of the Station House Officer of
the police station concerned with the
following conditions:-

(i) the applicant shall make
himself available for interrogation by a
police officer as and when required;

(ii) the applicant shall not directly
or indirectly, make any inducement, threat
or promise to any person acquainted with
the facts of the case so as to dissuade him
from disclosing such facts to the Court or
to any police office;

(iii) the applicant shall not leave
India without the previous permission of
the Court and if he has passport the same
shall be deposited by him before the
S.S.P./S.P. concerned.

In
default
of
any
of
the
conditions, the Investigating Officer is at
liberty to file appropriate application for
cancellation of anticipatory bail granted to
the applicant.

The
Investigating
Officer
is
directed to conclude the investigation of the
present case in accordance with law
expeditiously preferably within a period of
three months from the date of production of
a certified copy of this order independently
without being prejudice by any observation
made by this Court while considering and
deciding the present anticipatory bail
application of the applicant.

The applicant is directed to
produce a certified copy of this order,
before the S.S.P./S.P. concerned within ten
days from today, who shall ensure the
compliance of present order.

19. In view of the aforesaid terms, the
application is disposed of.
----------
(2022) 8 ILRA 271
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.06.2022

BEFORE

THE HON'BLE SAMEER JAIN, J.

Criminal Misc. Bail Application No. 24208 of
2022

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

Counsel for the Applicant:
Sri Kapil Tyagi

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code,1860 -
Section 302 &120(B) - Dying declaration
against the Applicant-Post Mortem-died due to
ante mortem burn injuries.

Bail Application dismissed. (E-9)

List of Cases cited:

1.Birjmani Devi Vs Pappu Kumar & anr. reported
in [2022 4 SCC 497]

2. Ms. Y. Vs St. of Raj. & anr. in Crl. Appeal No.
649 of 2022 arising out of SLP (Crl.) No. 7893 of
2021

3.Sabir Vs Bhura @ Nadeem & anr. in Crl.
Appeal No. 227 of 2022 (arising out of SLP (Crl.)
No. 6941 of 2021)

4.Sunder Lal Vs State reported in [1983 Crl J
736]

5.Chander @ Chandra Vs St. of U.P. reported in
[1998 CRI.I. J. 2374]
272 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Sri Kapil Tyagi, learned
counsel for the applicant, Sri Arvind
Kumar, learned AGA for the State and
perused the record of the case.

2. By way of the present application,
applicant made prayer to release him on
bail in Case Crime No. 39 of 2019, under
Sections 302, 120B IPC, Police Station
Sikandra, District Agra.

3. Applicant is the cousin brother
(Mausera Bhai) of the deceased. The FIR
of the present case was lodged on
20.01.2019 under Sections 302, 120B IPC
against the applicant and his parents with
the allegation that on 15.11.2018 applicant
along with his parents ablazed the sister of
informant, namely Rakhi by pouring
kerosene oil and during the course of
treatment, Rakhi (sister of informant)
succumbed to her injuries on 20.11.2018.
The dying declaration of the deceased
Rakhi was recorded by the Additional City
Magistrate-III, Agra on 15.11.2018 i.e. on
the date of incident in the hospital in which
she stated that applicant, his parents and
Mintu (brother of applicant) dragged her in
their home and after pouring kerosine oil
ablazed her.

4. Learned counsel for the applicant
submitted that entire allegation made in the
FIR and in the dying declaration of the
deceased is totally false and baseless and
initially,
during
investigation,
the
accusation made against the applicant and
his parents were found false, therefore,
final report was submitted on 19.02.2019
thereafter, on the direction of the SSP
concerned,
further
investigation
was
commenced and on 18.8.2019 charge-sheet
was submitted against the parents of the
applicant whereas, in respect of applicant,
investigation
continued.
He
further
submitted
that
thereafter
charge-sheet
against the applicant was also filed.
Learned counsel for the applicant submitted
that dying declaration of the deceased
Rakhi is not in accordance with law and is
tutored one and he vehemently submitted
that
co-accused
Smt.
Mausammi
@
Triveni, the mother of applicant, Raju, the
father of applicant and Mintu, the brother
of applicant have already been enlarged on
bail by the co-ordinate Bench of this Court
and as per dying declaration the allegation
against the applicant is also at par with
those accused persons, who have been
enlarged on bail, therefore, on the ground
of parity applicant should also be released
on bail.

5. Per contra, learned AGA submitted
that there is specific allegation against the
applicant in the dying declaration of the
deceased recorded by the Additional City
Magistrate-III on 15.11.2018 and while
granting bail to co-accused, namely, Smt.
Mausammi @ Triveni, Raju and Mintu, the
dying declaration of the deceased could not
be discussed, therefore, on the ground of
parity applicant should not be released on
bail.

6. I have heard both the parties and
perused the record of the case.

7. From the perusal of the FIR, it
appears that informant, who is brother of
the deceased was not an eye witness, but on
15.11.2018, Additional City Magistrate-III
recorded the dying declaration of the
deceased Rakhi in the hospital, which is
annexed as Annexure No. 17 to the
affidavit filed in support of bail application.
From the perusal of the dying declaration
of deceased it reflects that there is specific
8 All. Manish Vs. State of U.P.
273
allegation against the applicant and coaccused Smt. Mausammi @ Triveni, Raju
and Mintu that all the accused persons
including the applicant dragged her in their
house and ablazed her after pouring
kerosene oil.

8. Firstly co-accused Mintu @ Amit
was granted bail by co-ordinate Bench of
this Court on 6.8.2021 vide Crl. Misc. Case
No. 27220 of 2021. Perusal of the bail
order of co-accsued Mintu @ Amit shows
that he was granted bail merely on the basis
of argument advanced by learned counsel
for the co-accused. The bail order dated
6.8.2021 is extracted below:

"Heard learned counsel for the
applicant and learned A.G.A. for the State
and perused the material on record.

By means of this application, the
applicant who is involved in Case Crime
No. 39 of 2019, under section 302 IPC, P.S.
Sikandra,
District
Agra,
is
seeking
enlargement on bail during the trial.

The first information report of
this
incident
was
lodged
by
the
complainant about the unnatural death of
his sister on 20.11.2018. It was alleged in
the F.I.R. that the deceased was married
with Kunwar Pal who was living in
Sikandara Agra at the house of her naniya
sasur Bhoopat and the complainant sister
(deceased) who is mausiya saas was also
living with her family in the same house. It
was also alleged in the F.I.R. that there
was a family dispute between them over
distribution of property and due to that
reason family of mausiya saas of the
deceased was having enmity with the
deceased. It was also alleged in the F.I.R.
that the accused persons after pouring
kerosine oil set ablaze the deceased. The
deceased received serious burn injuries.
She was taken to the hospital, where she
succumbed to injuries during treatment on
20.11.2018. It was also alleged in the F.I.R.
that police has not investigated the matter
properly in connivance with the accused
persons and no proceedings were initiated
against the accused persons.

Learned counsel for the applicant
has submitted that the first information
report was lodged in pursuance of
application given under section 156 (3)
Cr.P.C. He further submits that the present
accused is quiet innocent and he has been
falsely implicated in the present case.
Initially the matter was investigated and
the police submitted the final report. Later
on the matter was further investigated and
the police has submitted charge sheet
against the applicant on the basis of same
evidence on which earlier final report was
submitted. He has next submitted that the
present accused was not named in the
F.I.R. and the name of the present accused
surfaced in the alleged dying declaration of
deceased. He has submitted that deceased
dying declaration was tortured one and she
has given dying declaration in greed of
property of naniya sasaur Bhoopat. He has
submitted that Bhoopat whose property was
distributed between the Kela and mausiya
saas Mausammi and her family. He next
submitted that deceased wanted share in
property of Bhoopat but she was not given
any share in property by Bhoopat and the
property was distributed through a will by
Bhoopat to her two daughters one is
Mausammi and other is Kela. Kela is
mother-in-law of the deceased. He has
submitted that to put pressure on Bhoopat
deceased threatened to commit suicide and
she had poured kerosine oil over her body
herself and set fire.

He lastly submitted that the
applicant has no criminal history and he is
languishing in jail since 27.09.2019 and in
case he is released on bail, he will not
274 INDIAN LAW REPORTS ALLAHABAD SERIES
misuse the liberty of bail and will
cooperate in trial.

The prayer for bail has been
vehemently opposed by learned A.G.A and
submitted that deceased has given a dying
declaration before her death and in which
she has specifically nominated the present
accused and other accused persons and she
has died due to burn injuries.

After
considering
the
rival
submissions made by learned counsel for
the parties and without expressing any
opinion on the merits of the case, this Court
is of the view that the applicant is entitled
to be enlarged on bail during the pendency
of the trial.

Let the applicant, Mintu @ Amit
be released on bail in the aforesaid case on
his executing a personal bond and
furnishing two sureties each in the like
amount to the satisfaction of the court
concerned
subject
to
the
following
conditions:-

(a) The applicant shall attend the
court according to the conditions of the
bond executed by him.

(b) The applicant shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.

It is further directed that the
identity, status and residence proof of the
sureties be verified by the authorities
concerned before they are accepted.

In case of breach of any of the
above conditions, the trial court will be at
liberty to cancel the bail.

The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad, self attested by learned counsel
for the applicant along with a self attested
identity proof of the said persons (preferably
Aadhar Card) mentioning the mobile number
(s) to which the said Aadhar Card is linked
before the concerned Court/Authority/Official

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."

9. Similarly on 22.11.2021, co-accused
Raju, the father of the applicant was released
on bail by another co-ordinate Bench of this
Court in Crl. Misc. Bail Application No.
45996 of 2021. Perusal of the bail order of
co-accused Raju dated 22.11.2021 shows that
he was also released on bail on the basis of
argument advanced by learned counsel for
co-accused Raju. The bail order dated
22.11.2021 is extracted below:-

"Heard learned counsel for the
applicant, learned A.G.A. for State and
perused the material available on record.

Accused-applicant, involved in S.T.
No. 461 of 2019, Case Crime No.39 of 2019,
under Section 302 I.P.C., Police Station
Sikandra, District Agra, applied for bail.

Learned counsel for the applicant
submits in following manner :-

(i) Applicant is innocent and has
been falsely implicated in the present case;
he has committed no offence; entire
prosecution story is false and fake.

(ii) The applicant is named in
F.I.R. but he has no concerned with the
present case. He is the Mausiya Sasur of
the victim. There was a dispute between the
parties that is why victim committed
suicide.

(iii) The allegation against the
present applicant has been levelled only in
the dying declaration of the deceased
which is tutored and the same is very weak.
8 All. Manish Vs. State of U.P.
275

(iv) The investigation of the case
has come to an end and charge sheet has
already been submitted by Investigating
Officer. There is no direct evidence against
the applicant and no statement of children
of deceased has been recorded.

(v) The incident is said to be in
the house, thereafter, near a temple. The
co-accused Mintu @ Amit, whose name
has also come during investigation as
well as in the dying declaration of
deceased.

(vi) Co-accused Minto @ Amit
has already been granted bail by coordinate Bench of this Court vide order
dated 06.08.2021 in Criminal Misc. Bail
Application No. 27220 of 2021 and the
case of the applicant stands of identical
footing, hence the applicant is also
entitled for bail on the ground of parity.

(vii) Applicant is in jail since
03.07.2019. There is no possibility of the
applicant's fleeing away from the judicial
process or tampering with the witnesses.
In case the applicant is enlarged on bail,
he shall not misuse the liberty of bail.

Learned A.G.A. opposed the
prayer for bail but conceded the factual
submissions made by the learned counsel
for the applicant.

Considering
the
facts
and
circumstances
of
the
case,
rival
contention of learned counsel for the
parties, detention of applicant in jail,
severity
of
punishment
in
case
of
conviction, factum of bail to co-accused,
evidence
collected
by
I.O.
during
investigation and without commenting
upon the merit of the case, applicant
deserves bail.

Accordingly, bail application is
allowed.

Let applicant Raju be released
on bail in the aforesaid case crime on his
furnishing a personal bond and two
reliable
sureties
and
filing
an
undertaking to the satisfaction of the
court concerned subject to the following
conditions:-

1. The applicant shall not
tamper with the evidence or threaten the
witnesses.

2. The applicant shall cooperate with the trial and shall not seek
any adjournment on the dates fixed for
charge, evidence when the witnesses are
present in the court, statement under
Section 313 Cr.P.C. and argument.

3. During trial, he shall not
indulge in any criminal activities or case.

In breach of any condition
enumerated above, Trial Court shall be at
liberty to treat it as abuse of liberty of bail
and pass appropriate orders in accordance
with law."

10.

Further,
co-accused
Smt.
Mausammi @ Triveni mother of the
applicant was granting bail by co-ordinate
Bench of this Court on 11.4.2022 in Crl.
Misc. Bail Application No. 20628 of 2020.
Perusal of the bail order dated 11.4.2022
shows that she was also released on bail on
the basis of the argument advanced by
learned counsel for the co-accused Smt.
Mausammi @ Triveni. The bail order dated
11.4.2022 is extracted below:-

"Heard learned counsel for the
applicant, learned A.G.A. for the State and
perused the material on record.

By means of this application, the
applicant who is involved in Case Crime
No. 39 of 2019, under sections 302 IPC,
Police Station Shikandra, District Agra and
is in jail since 3.7.2019, is seeking
enlargement on bail during the trial.

Learned counsel for the applicant
submits that the first information report of
the present case was lodged in pursuance
276 INDIAN LAW REPORTS ALLAHABAD SERIES
of the application given under section
156(3) Cr.P.C. He further submits that the
present accused applicant is quiet innocent
and he has been falsely implicated in the
present case. Initially the matter was
investigated and the police submitted the
final report. Later on the matter was
further investigated and the police has
submitted
charge-sheet
against
the
applicant on the basis of same evidence on
which earlier final report was submitted.
He has submitted that deceased's dying
declaration was tutored one and she has
given dying declaration in greed of
property of Naniya Sasur Bhoopat. He has
submitted that Bhoopat whose property was
distributed between the Kela and Mausiya
Saas Mausammi and her family. He next
submitted that deceased wanted share in
the property by Bhoopat and the property
was distributed through a Will by Bhoopat
to her two daughters one is Mausammi and
other is Kela (mother-in-law of the
deceased). He has submitted that to put
pressure on Bhoopat deceased threatened
to commit suicide and she had poured
kerosine oil over her body herself and set
fire. He next submitted that the applicant
had no role whatsoever in the commission
of alleged incident.

It is submitted by learned
counsel for the applicant that similarly
placed co-accused Mintu @ Amit and
Raju have already been enlarged on bail
by this Court by orders dated 6.8.2021
and 22.11.2021 passed in Criminal Misc.
Bail Application Nos. 27220 of 2021 and
45996 of 2021, copy whereof have been
submitted by the applicant, which are
taken on record. He further submitted
that since the role of the applicant is
identical to that of co-accused Mintu @
Amit and Raju who have already been
enlarged on bail, he is also entitled to be
enlarged on bail on the ground of parity.

The
prayer
for
bail
has
vehemently been opposed by learned
A.G.A. However, the aforesaid factual
aspect of the matter has not been
disputed by him.

Considering
the
submissions
made by learned counsel for the applicant
as well as learned A.G.A., this Court is of
the view that the applicant has made out a
case for grant of bail on the ground of
parity.

In view of the above, let the
applicant, Smt. Mausammi @ Triveni be
released on bail in the aforesaid case on
her executing a personal bond and
furnishing two sureties each in the like
amount to the satisfaction of the court
concerned with the following conditions :-

(a) The applicant shall attend the
court according to the conditions of the
bond executed by her.

(b) The applicant shall not
directly or indirectly make any inducement,
threat or promise to any person acquainted
with the facts of the case so as to dissuade
him from disclosing such facts to the Court
or to any police officer or tamper with the
evidence.

It is further directed that the
identity, status and residence proof of the
sureties be verified by the authorities
concerned before they are accepted.

In case of breach of any of the
above conditions, the trial court will be at
liberty to cancel the bail."

11. Therefore, from the perusal of bail
orders of similarly placed co-accused
shows that without assigning any reasons,
they were released on bail merely on the
basis of argument advanced by learned
counsel for the co-accused persons.

12. Recently three Judges Bench of
the Supreme Court in case of Birjmani
8 All. Manish Vs. State of U.P.
277
Devi Vs. Pappu Kumar and another
reported in [2022 4 SCC 497] deprecated
the practice to allow bail application
without assigning any reason and observed
in paragraph 38 as follows-

"38. Thus, while elaborating
reasons may not be assigned for grant of
bail, at the same time an order de hors
reasoning or bereft of the relevant reasons
cannot result in grant of bail. It would be
only a non speaking order which is an
instance of violation of principles of
natural justice. In such a case the
prosecution or the informant has a right to
assail the order before a higher forum."

The
Apex
Court
in
the
above
mentioned case cancelled the bail granted
to the accused on the ground that while
granting bail High Court failed to assigned
the reasons.

13. On 19.4.2022, the Apex Court in
case of Ms. Y. Vs. State of Rajasthan and
another in Crl. Appeal No. 649 of 2022
arising out of SLP (Crl.) No. 7893 of
2021 in paragraph-17 observes as follows:-

"17. Apart from the general
observation
that
the
facts
and
circumstances of the case have been taken
into account, nowhere have the actual facts
of the case been adverted to. There appears
to be no reference to the factors that
ultimately led the High Court to grant bail.
In fact, no reasoning is apparent from the
impugned order."

The Supreme Court in above case also
cancelled the bail granted to the accused by
the High Court on the ground that High
Court did not assign any reasons.

14. The Apex Court in case of Sabir
Vs. Bhura @ Nadeem and another in
Crl. Appeal No. 227 of 2022 (arising out
of SLP (Crl.) No. 6941 of 2021) while
setting aside the bail orders granted by the
High Court observed as follows:-

"Since we find that no reasons
have been given in substance and there is
only narration of facts in the orders
impugned, we are of the opinion that the
orders impugned deserve to be set aside."

15. The Full Bench of this Court in
case of Sunder Lal Vs. State reported in
[1983 Crl J 736] declined to accept the
argument that as co-accused has been
admitted to bail, therefore, the then
applicant should also be granted bail on the
ground of parity.

16. Further, Division Bench of this
Court in case of Chander @ Chandra Vs.
State of U.P. reported in [1998 CRI.I. J.
2374] observed in paragraph 21 as
follows:-

"21. Our answers to the questions
referred are as follows :

1. If the order granting bail to an
accused is not supported by reasons, the
same cannot form the basis for granting
bail to a co-accused on the ground of
parity.

2. A judge is not bound to grant
bail to an accused on the ground of parity
even where the order granting bail to an
identically placed co-accused contains
reasons, if the same has been passed in
flagrant violation of well settled principle
and ignores to take into consideration the
relevant factors essential for granting bail.-

3.
A
Judge
hearing
bail
application of one accused cannot cancel
the bail granted to a co-accused by another
Judge on the ground that the same had
been granted in flagrant violation of well
settled principles. If he considers it
278 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary in the interest of justice, he may,
after expressing his views, refer the matter
to the Judge who had granted bail, for
appropriate orders.

4. If it appears that a bail order
has been passed in favour of an accused on
the basis of wrong or incorrect documents
it is open to any Judge to initiate action for
cancellation of bail."

17. Therefore, from the above
discussion, it is apparent that parity cannot
become the sole criteria to grant bail and if
the bail granted to similarly placed coaccused persons without assigning any
reasons then on the basis of such bail
orders merely on the ground of parity, the
bail application should not be allowed and
parity can only be persuasive in nature and
cannot be binding.

18. In the present case, in the dying
declaration of the deceased, there is
specific allegation against the applicant that
he alongwith co-accused persons dragged
the deceased in his house and poured
kerosene oil on her and when she tried to
manage to escape then after chasing her
applicant and co-accused persons ablazed
her and post mortem report of the deceased
further shows that she died due to ante
mortem burn injuries and co-accused
persons who were although released on bail
by co-ordinate Bench of this Court but their
bail orders shows that they were released
on bail merely on the basis of the argument
advanced by their respective counsels
without assigning any reasons, therefore, in
my view, it is not a fit case in which
applicant can either be released on bail on
merit or on the ground of parity.

19. Accordingly, the present bail
application is dismissed.
----------
(2022) 8 ILRA 278
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.06.2022

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Misc. Bail Application No. 46494 of
2021

Mokhtar Ansari ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Upendra Upadhayay

Counsel for the Opposite Party:
Sri Ratnesh Kumar Singh, A.G.A., Sri M.C.
Chaturvedi (A.A.G.)

(A) Criminal Law - Criminal Procedure
Code,1860 - Section - 439, - Indian Penal
Code, 1860 - Sections 120-B, 419, 420,
467, 468 & 471 - Application for Bail -
principles of parity - allegation of cheating,
forgery and mis-utilization of public money to
the tune of Rs. 25 Lacs from Vidhayak Nidi
along with co-accused - F.I.R. - during
investigation - reveals that - on a forged
proposal for construction of a School on plot in
question said money was realised in favour of
the co-accused (whom are their own party
members) by the applicant and in place of
school there were a banana & wheat crop is
cultivated - applicant who is a sitting M.L.A. and
facing various criminal trials about 58 criminal
cases even in the age of 54 years and he is in
jail since year 2005 seeking parity with coaccused - while considering the nature of
involvement of the accused in the crimes and
since he is no doubt to be named as 'history
sheeter', & become interSt. Mafia - court afraid
to extend the benefit of parity - consequently,
the bail application is rejected.
(Para - 32, 34, 37)

(B) Criminal Law - Criminal Procedure
Code1 1973 - Section - 439, - Indian Penal