# Nitesh Kumar Singh v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 9
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-21
- **Case number:** Crl. Misc. Bail Cancellation Application No. 302 of 2021
- **Bench:** Mayank Kumar Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitesh-kumar-singh-v-state-of-u-p-anr-50040
- **Pages:** 12

## Headnote

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 439(2) - Bail
Cancellation - Indian Penal Code, 1860 -
Sections 302 & 120B - cancellation of
bail cannot be limited to the occurrence
of supervening circumstances - Court
has the inherent powers and discretion
to cancel the bail of an accused even in
the
absence
of
supervening
circumstances - grounds for cancellation
of bail - interference or attempt to
interfere
with
the
due
course
of
administration of Justice - evasion or
attempt to evade the due course of
justice
-
abuse
of
the
concession
granted to the accused in any manner -
Possibility
of
accused
absconding
-
Likelihood of/actual misuse of bailLikelihood of the accused tampering
with
the
evidence
or
threatening
witnesses. (Para -30)

Offences of murder and criminal conspiracy -
Opposite parties named in F.I.R. - committed
conspiracy to kill - deceased made oral dying
declaration before informant - involvement of
opposite parties in incident - not taken into
consideration by trial court - release on bail -
another Case registered and charge sheet
submitted - for offence of making threat of
causing death or grievous hurt to witness of
case - trial court overlooked that opposite
parties were absconding soon after incident -
eluded process of law.(Para - 50)

HELD:-Trial Court passed impugned bail orders
based on incorrect facts without verifying the
record. Material evidence was overlooked by
trial Court. Impugned bail orders cannot be
sustained hence set aside. (Para -39,51,52)

Bail Cancellation Application allowed. (E-7)

List of Cases cited:

## Text

4 All. Nitesh Kumar Singh Vs. State of U.P. & Anr.
9
(2023) 4 ILRA 9
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.04.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.

Crl. Misc. Bail Cancellation Application No. 302
of 2021
with
Crl. Misc. Bail Cancellation Application No. 188
of 2022
with
Crl. Misc. Bail Cancellation Application No. 207
of 2022
with
Crl. Misc. Bail Cancellation Application No. 255
of 2022

Nitesh Kumar Singh ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Rajiv Kumar Singh, Sri Manish Tiwari,
Sri Prabhakar Awasthi, Sri Surendra Kumar
Chaubey, Vinay Kumar, Sri Pradeep Kumar
Mishra, Sri Vinay Saran (Sr. Advocate)

Counsel for the Opposite Parties:
G.A., Sri Amrish Tiwari, Sri Vikram Bahadur
Singh, Sri Satya Dheer Singh Jadon, Sri
Rajiv Nayan Singh, Sri Krishan Murari
Tripathi, Sri V.P. Srivastava (Sr. Advocate)

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 439(2) - Bail
Cancellation - Indian Penal Code, 1860 -
Sections 302 & 120B - cancellation of
bail cannot be limited to the occurrence
of supervening circumstances - Court
has the inherent powers and discretion
to cancel the bail of an accused even in
the
absence
of
supervening
circumstances - grounds for cancellation
of bail - interference or attempt to
interfere
with
the
due
course
of
administration of Justice - evasion or
attempt to evade the due course of
justice
-
abuse
of
the
concession
granted to the accused in any manner -
Possibility
of
accused
absconding
-
Likelihood of/actual misuse of bailLikelihood of the accused tampering
with
the
evidence
or
threatening
witnesses. (Para -30)

Offences of murder and criminal conspiracy -
Opposite parties named in F.I.R. - committed
conspiracy to kill - deceased made oral dying
declaration before informant - involvement of
opposite parties in incident - not taken into
consideration by trial court - release on bail -
another Case registered and charge sheet
submitted - for offence of making threat of
causing death or grievous hurt to witness of
case - trial court overlooked that opposite
parties were absconding soon after incident -
eluded process of law.(Para - 50)

HELD:-Trial Court passed impugned bail orders
based on incorrect facts without verifying the
record. Material evidence was overlooked by
trial Court. Impugned bail orders cannot be
sustained hence set aside. (Para -39,51,52)

Bail Cancellation Application allowed. (E-7)

List of Cases cited:

1. Manoj Kumar Khokhar Vs St. of Raj. & anr.
AIR (SC) 364

2. Pooran Vs Ramvilas & nr., 2001 CRI.L.J. 2566

3. Deepak Yadav VS St. of U.P. & anr., 2022 (8)
SCC 559

4. Dolat Ram & ors. Vs St. of Haryana, (1995) 1
SCC 349

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

1. Heard Sri Vinay Saran, Senior
Advocate assisted by Sri Pradeep Kumar
Mishra and Sri Surendra Kumar Chaube,
learned counsel for the applicant-Nitesh
Kumar Singh.
10 INDIAN LAW REPORTS ALLAHABAD SERIES

Sri V.P. Srivastava, Senior Advocate
assisted by Sri Satya Dheer Singh Jadon,
Sri Rajeev Nayan Singh, Sri Vikram
Bahadur Singh and Sri Krishan Murari
Tripathi learned counsel for the opposite
parties-Sabal Singh @ Amritesh Singh,
Hari Singh and Raj Narain Pandey.

Sri S. K. Ojha, learned AGA, Sri
Suraj Singh, Sri Yogeshwar Rai, Ms.
Reema Gupta, learned counsel for the State
of U.P.

2. Applicant Nitesh Kumar Singh has
filed Criminal Misc. Bail cancellation
application Nos. 302 of 2021, 188 of 2022
and 207 of 2022 under Section 439(2) of
Cr.P.C. seeking cancellation of bail granted
to opposite parties namely Shabal Singh @
Amritesh Singh, Hari Singh and Raj
Narayan Pandey in Case Crime No. 167 of
2021 u/s 302, 120B IPC relating to Police
Station Bairiya, District Ballia.

3. Criminal Misc. Bail Cancellation
Application No. 255 of 2022 is filed by the
State of U.P. seeking cancellation of bail
granted to opposite party/ accused Shabal Singh
@ Amritesh Singh by the Additional Sessions
Judge, Court No.3, Ballia vide its order dated
05.08.2021 in the above noted case passed in
Bail Application No. 1426/2021.

4. Opposite parties/accused Hari Singh
and Raj Narayan Pandey were granted bail
by the learned In-charge Additional Session
Judge,
Ballia
vide
the
order
dated
28.04.2022 in the above noted case passed
in Bail Applications No. 2324/2021 and
95/2022 respectively.

5. Since all the bail cancellation
applications relate to same crime number
and same set of facts, therefore, these
applications are being decided by this
common order.

6. The facts of the case are that the
applicant/complainant Nitesh Kumar Singh
lodged the first information report in Police
Station
Bairiya,
District
Ballia,
on
07.07.2021 mentioning therein that on
07.07.2021, his elder brother Jaleshwar
Singh @ Balbeer Singh along with Shabal
Singh @ Amritesh Singh, who was known
to him, was returning in his private vehicle
after visiting his friend. At around 12.00
noon the car was stopped at the shop of
Jauhar Mistri. Five persons riding two
motorcycles came there and fired upon his
elder
brother.
On
receiving
this
information, the informant rushed towards
the place of occurrence and found that his
brother was still alive at that time. When
he, along with some other persons, was
taking his brother to Sonbarsa Hospital, his
brother told him that Harish Paswan S/O
Indradev Paswan, R/O Babubel, Police
Station Haldi, Hari Singh S/O late Kedar
Singh R/O Bairiya and Raj Narayan
Pandey S/O late Singar Pandey R/O
Bairiya accompanied by two unknown
persons had shot him. His brother also told
him that Shabal Singh @ Amritesh Singh
committed conspiracy to kill him. As soon
as he reached the hospital, the doctors
declared his brother dead.

7. Learned counsel for the applicant
and learned Government Counsel for the
State of U. P. argued that on 14.08.2021 i.e.
after the release on bail pursuant to
impugned bail orders, the opposite parties
namely Shabal Singh @ Amritesh Singh,
Harish Paswan and Hari Singh gave threats
of causing death or grievous hurt to Amit
Kumar Varma, who is the witness of
inquest proceedings of the deceased and
also the Pairokar of the informant. First
information report having crime No.207 of
2021 was registered on 15.08.2021 against
them under Section 506, 507 of IPC at
4 All. Nitesh Kumar Singh Vs. State of U.P. & Anr.
11
Police Station, Bairiya District Ballia. A
charge sheet came to be filed against them
except Harish Paswan, since he was killed
in the police encounter on 03.09.2021. This
act of the opposite parties demonstrate that
they had misused the liberty of bail granted
to them. They would adversely affect the
fair trial and they would tamper the
evidence proposed to be produced against
them during the trial. There is strong
apprehension of killing of the applicant as
well as the witnesses of the prosecution by
these persons/opposite parties.

8. The learned trial Court while
passing
the
impugned
bail
orders,
completely ignored the credible evidence
that the deceased before his last breath told
the
informant
and
his
sister-in-law
[Bhabhi]-Ranjana
Singh
that
opposite
parties Harish Paswan, Hari Singh, Raj
Narain Pandey and two unnamed persons
shot him and Shabal Singh @ Amritesh
Singh committed criminal conspiracy. The
statement of the informant was noted down
by the Investigating Officer on 02.08.2021
which was available before the trial court
on record at the time of granting bail to
opposite party Shabal Singh @ Amritesh
Singh
vide
order
dated
05.08.2021.
Similarly, the statement of Ranjana Singhthe sister in law [Bhabhi] of the deceased,
who was also sitting in the same car in
which the deceased was being taken to the
hospital by the informant, and before whom
also the deceased made his oral dying
declaration indicating the involvement of
the opposite parties in the incident, was
also noted down by the Investigating
Officer on 17.08.2021. The opposite parties
Hari Singh and Raj Narain Pandey were
granted bail by the learned trial court on
28.04.2022.
The
statements
of
the
informant
and
Ranjana
Singh
were
completely overlooked while granting bail
to them by the learned trial court. This
demonstrates that the impugned bail orders
were passed without considering the
record.

9. It is also vehemently argued that the
learned trial Court while passing the
impugned bail orders completely ignored
the statement of Jauhar Ansari, the owner
of Motor Garage, who was present at the
time of the incident at the place of
occurrence.
This
witness
specifically
denied that the opposite party Shabal Singh
@ Amritesh Singh had any dues against
him. It has been wrongly noted in the
impugned bail order passed by the trial
court in favour of the opposite party Shabal
Singh @ Amritesh Singh that the statement
of Jauhar Ansari was not recorded by the
Investigating Officer since his statement
was noted down on 02.08.2021 while the
impugned bail order was passed by the trial
court on 05.08.2021. Therefore it is clear
that his statement was available on record
before the trial Court at the time of granting
bail to opposite party/ accused Shabal
Singh @ Amritesh Singh.

10. It is further submitted that it was
wrongly argued before the trial court that
the opposite parties also received firearm
injuries along with the deceased during the
incident. It is not true since none of the
opposite parties were medically examined
and their medical reports were also not
available on record. Thus, the trial Court
was misled and it considered this argument
without verifying the record. The learned
trial Court had copied and pasted the bail
order previously passed in subsequent
orders. Thus, the impugned bail orders are
not based upon true facts and are passed
without verifying the record. The learned
trial Court mentioned wrong facts in the
bail orders passed in favour of opposite
12 INDIAN LAW REPORTS ALLAHABAD SERIES
parties namely Hari Singh and Raj Narain
Pandey that they were also sitting in the same
car along with the deceased and they committed
conspiracy to eliminate Jaleshwar Singh @
Balbeer Singh, the deceased. It is factually
incorrect since these opposite parties fired upon
at Jaleshwar Singh @ Balbeer Singh with
firearm weapons at the time and the place of
occurrence but they are not assigned the role of
committing conspiracy to kill Jaleshwar Singh
@ Balbeer Singh. Thus the impugned order is
patently wrong and is passed on the basis of
incorrect facts.

11. It is also submitted that it was strongly
argued on behalf of the applicant that the
learned trial court while passing the impugned
bail orders, has completely ignored and
overlooked the criminal history of opposite
parties namely Shabal Singh@ Amritesh Singh
and Hari Singh.

12. The opposite party Shabal Singh @
Amritesh Singh had criminal history of two
cases i.e. Case Crime No. 98/2015 under
Sections 354-B, 506 of IPC Police Station
Shivpuri District Varanasi and Case Crime
No.49 of 2011 under Sections 147, 148, 323,
307, 342, 506 of IPC Police Station Shivpuri
District Varanasi.

13. The opposite party Hari Singh had
criminal history of four cases having Crime
No.167/2021, under Sections 302/120B IPC,
P.S. Bairiya, District Ballia, Case Crime
No.207/2021 under Sections 506, 507 IPC,
Crime No. 128/2010 under Sections 147, 148,
149, 307, 336, 427 IPC Police Station Dokati,
District Ballia and Case Crime No.179/2006
under Sections 307, 302, 120B of IPC and
Section 7 of Criminal Law Amendment Act,
Police Station Bairiya, Distirct Ballia.

14. Both the opposite parties Shabal
Singh @ Amritesh Singh and Hari Singh
had concealed their criminal history to their
credit and they were history sheeters,
however, the learned trial Court wrongly
observed otherwise.

15. It is further submitted that the
learned trial court while granting bail to
opposite parties namely Hari Singh and Raj
Narain Pandey overlooked this fact that
they
were
absconding
soon
after
committing the murder of the brother of the
informant. Non Bailable Warrants were
issued against them. The process of Section
82 Cr.P.C was also issued against opposite
party/ accused Hari Singh and it was served
upon him. Thereafter, a reward of Rs.
25,000/- was also declared upon him to
ensure his presence. Both these opposing
parties have eluded the process of law.

16. It is also submitted that the bail
granted to the co-accused Abhay Bharti by
this Hon'ble Court has been cancelled by
the Hon'ble Apex Court after consideration
of all the facts and circumstances of this
case vide its order dated 07.03.2022 passed
in CRIMINAL APPEAL NO.374/ 2022
[SLP [CRL.] NO. 339/ 2022]

17. Learned counsel for the applicant
placed
reliance
on
Manoj
Kumar
Khokhar Vs. State of Rajasthan & Anr.
AIR (SC) 364.

18. Per contra, learned counsel for the
opposite parties-Shabal Singh @ Amritesh
Singh, Hari Singh and Raj Narayan Pandey
vehemently opposed the bail cancellation
applications and argued that opposite
parties have been falsely implicated in this
case. The incident was caused by some
unknown persons. As a matter of fact, the
deceased himself was a history sheeter,
having criminal history of as many as 13
criminal cases to his credit. Therefore, it
4 All. Nitesh Kumar Singh Vs. State of U.P. & Anr.
13
might be possible that he was killed by
some other enemies who were not known
to him. Opposite parties Shabal Singh and
Hari Singh have been falsely implicated in
Case Crime No. 207 of 2021 under
Sections 506, 507 of IPC by Amit Kumar
Varma. They did not threaten to cause death
or grievous hurt to the witness. Amit
Kumar Varma is not a witness of fact but he
is only the witness of inquest proceedings.

19. It is further submitted that the nondisclosure of criminal history of the
opposite party Shabal Singh @ Amritresh
Singh was not a deliberate suppression
because at the time of presentation of bail
application he was in jail, therefore, the
information about earlier criminal cases
could not be brought on record and the
pairokar had no knowledge about his
criminal history.

20. He was falsely implicated in Case
Crime No.98/2015 under Section 354B,
506 of IPC, Police Station Shivpur, District
Varanasi in which the final report was
submitted on 10.05.2015 which has been
accepted by the court concerned on
27.04.2015.

21. In another case, he was falsely
implicated which was registered as S.T. No.
133 of 2012 arising out of Crime
No.49/2011, under Sections 147, 148, 323,
307, 342, 506 of IPC, Police Station
Shivpur, District Varanasi. In this case, he
has been acquitted vide judgement and
order dated 22.11.2012 passed by the
Additional Sessions Judge, Court No.8,
Varanasi.

22. So far as the criminal history of
opposite party Hari Singh is concerned, in
two cases, Case Crime No.167/2021 is the
present
case,
and
in
Case
Crime
No.207/2021 under Section 506, 507 IPC
he has already been granted bail. In the
third case, Crime No. 128/2010 under
Section 147, 148, 149, 307, 336, 427 IPC,
Police Station Dokati, District Ballia, he is
discharged by the court concerned. In the
fourth case having Crime No.179/2006,
under Sections 307, 302, 120B of IPC and
Section 7 of Criminal Law Amendment
Act, Police Station Bairiya Distirct Ballia,
he is acquitted by the trial Court.

23. It is further argued that the
informant is not the eye witness of the
incident and the alleged eye witness Jauhar
Mistri had not taken the name of opposite
parties Hari Singh and Raj Narain Pandey.
The first information report is silent about
the motive behind the murder of the
deceased. The role of opposite parties Hari
Singh and Raj Narain Pandey is quite
different from the role of opposite party
Shabal Singh @ Amritesh Singh and coaccused Abhay Bharti.

24. It is further submitted that the
opposite party Raj Narain Pandey is not
named as accused in Crime No. 207 of
2021 under Section 506, 507 of IPC. No
charge sheet is filed against him in this
case. He never made any threat to any
witness of the case. He is a retired person
from the Army having no rivalry with the
deceased. The deceased had criminal
history of 13 cases and the deceased was
trying to grab his landed property. The
deceased had attempted to murder his son
Suryakamal Pandey therefore, an FIR was
lodged against him and other co-accused
namely Maniram Singh and Amit Varma
having Case Crime No.173 of 2019, under
Section 307, 147, 148, 149 IPC Police
Station Bairiya , District Ballia. Rajnarayan
Pandey and his wife lodged NCR No.37 of
2019, 67 of 2019 and 125 of 2019. Only for
14 INDIAN LAW REPORTS ALLAHABAD SERIES
this reason he has falsely been roped in the
present case.

25. It is vehemently argued that as per
the postmortem report of the deceased
Jaleshwar Singh @ Balbeer Singh, he
sustained as many as 13 firearm injuries.
During the postmortem, blood was found to
be present in both the nostrils and the
mouth of the deceased. Closed bloodstains
were present over the face and clothes.
Both the lungs of the deceased were found
to be punctured and right lower ventricle of
the heart was found to be punctured. In
view of the above fire arm injuries and
findings, the deceased could not have
spoken even a word and hence, there could
be no occasion of making dying declaration
by him before the informant and Ranjana
Singh. The alleged dying declaration is not
a credible evidence and it cannot be proved
during the course of the trial.

26. It is also submitted that the bail
granted to the co-accused Abhay Bharti by
this Hon'ble Court was cancelled by the
Hon'ble Supreme Court for the reason that
he was previously convicted and sentenced
for imprisonment for life under Section 302
and 506 IPC in earlier FIR No.467 of 1998.
The opposite parties Shabal Singh @
Amritesh Singh and Hari Singh are not
previously convicted and their criminal
history
is
properly
explained.
The
impugned bail order was passed by the
learned trial Court after considering all the
material available on record. The present
Bail Cancellation Applications deserve to
be dismissed.

27. Learned counsel for the opposite
parties placed reliance in Pooran Vs.
Ramvilas & Anr., 2001 CRI.L.J. 2566 and
submitted that setting aside the unjustified
illegal and perverse order is totally different
from the concept of cancelling the bail on the
ground that accused has misconducted
himself or because of some new facts
requiring such cancellation.

28. I have perused the record.

29. Section 439 (2) in The Code Of
Criminal Procedure, 1973 provides :-

"(2) A High Court or Court of
Session may direct that any person who has
been released on bail under this Chapter be
arrested and commit him to custody.

30. The Hon'ble Apex Court in Deepak
Yadav VS. State of U.P. & Anr., 2022 (8)
SCC
559
referred
the
grounds
for
cancellation of bail as laid down by the two
Judge bench in Dolat Ram And Others Vs.
State of Haryana, (1995) 1 SCC 349 :

"...

(i) interference or attempt to
interfere with the due course of

administration of Justice

(ii) evasion or attempt to evade the
due course of justice

(iii) abuse of the concession
granted to the accused in any manner

(iv)
Possibility
of
accused
absconding

(v) Likelihood of/actual misuse of
bail

(vi) Likelihood of the accused
tampering with the evidence or threatening
witnesses."

31. Based on the above grounds, the
Hon'ble Apex Court in Deepak Yadav
(supra) further observed that:

"33. It is no doubt true that
cancellation of bail cannot be limited to the
4 All. Nitesh Kumar Singh Vs. State of U.P. & Anr.
15
occurrence of supervening circumstances.
This Court certainly has the inherent
powers and discretion to cancel the bail of
an accused even in the absence of
supervening circumstances. Following are
the illustrative circumstances where the
bail can be cancelled :-

33.1 Where the court granting
bail takes into account irrelevant material
of substantial nature and not trivial nature
while ignoring relevant material on record.

33.2 Where the court granting
bail overlooks the influential position of the
accused in comparison to the victim of
abuse or the witnesses especially when
there is prima facie misuse of position and
power over the victim.

33.3 Where the past criminal
record and conduct of the accused is
completely ignored while granting bail.

33.4 Where bail has been granted
on untenable grounds.

33.5 Where serious discrepancies
are found in the order granting bail thereby
causing prejudice to justice.

33.6 Where the grant of bail was
not appropriate in the first place given the
very serious nature of the charges against
the accused which disentitles him for bail
and thus cannot be justified.

33.7 When the order granting
bail is apparently whimsical, capricious
and perverse in the facts of the given case."

32. Perusal of the impugned bail order,
granting bail to opposite party /accused
Shabal Singh @ Amritesh Singh dated
05.08.2021
passed
by
the
learned
Additional Sessions Judge, Court No.3,
Ballia relating to Bail application No.1426
of 2021, goes to show that in the argument
paragraph, advanced on behalf of the
accused, it is mentioned that "Kathit
Ghatna me mratak Jaleshwar ke sath
aawedak ko bhi fire arms ki choten aayi
hain" (Applicant also sustained firearm
injuries during the incident along with the
deceased Jaleshwar).....uska koi apradhik
itihas nahi hai" (he has no criminal history
to his credit).

33. On the basis of the record it is
found that opposite party/ accused Shabal
Singh @ Amritesh Singh did not sustain
any firearm injury during the incident. He
was not medically examined and no
medical report is available on record. The
learned trial Court did not confirm this with
the record but considered this argument
while granting bail to the opposite party. So
far as the criminal history of the opposite
party accused Shabal Singh @ Amritesh
Singh is concerned, it is brought on record
that he had criminal history of two cases at
the time of granting of bail to him. One was
case crime no.98/2015 under Section 354B,
506 IPC P.S. Shivpur, District Varanasi and
another was Case Crime No.49 of 2011,
under Sections 147, 148, 323, 307, 342,
506 IPC P.S. Shivpuri District Varanasi.
This criminal history is not controverted by
opposite party no.2/Accused Shabal Singh
@ Amritesh Singh. Through his counter
affidavit he explained the criminal history
to his credit that in the first case, final
report was submitted and in another case he
was acquitted after trial by the trial court. It
may be considered as criminal history is
explained but its existence is not denied.
The argument raised on behalf of the
opposite party/accused Shabal Singh @
Amritesh Singh cannot be accepted that
non disclosure of the criminal history on
his part was not deliberate since he was
confined in jail and these facts were not
within the knowledge of his pairokar.
Therefore,
it
is
clear
that
opposite
party/accused Shabal Singh @ Amritesh
Singh had criminal history at the time of
presentation of bail application which was
16 INDIAN LAW REPORTS ALLAHABAD SERIES
concealed by him. Learned trial Court
believed this contention and it was one of
the grounds for granting the bail to the
accused Shabal Singh @ Amritesh Singh.

34. So far as the impugned order
granting bail to opposite parties Hari Singh
and Raj Narain Pandey is concerned,
similar narration is found in the argument
paragraph quoted by the trial court,
advanced on behalf of these opposite
parties that they also sustained firearm
injuries during the incident alongwith the
deceased Jaleshwar Singh @ Balbeer Singh
and opposite party Hari Singh did not have
any criminal history to his credit.

35. The criminal history of opposite
party Hari Singh is brought on record
which are as follows:

(i) Case Crime No. 167/2021,
under Section 302, 120B IPC PS. Bairiya,
District Ballia

(ii) Case Crime No. 207/2021,
under Section 506, 507 IPC , P.S. Bairiya,
District Ballia

(iii) Case Crime No.128/2010,
under Section 147, 148, 149, 307, 336, 427
IPC, P.S. Dokati, District Ballia

(iv) Case Crime No. 179/2006
under Section 307, 302, 120B of IPC,
Section 7 of Criminal Law Amendment
Act, P.S. Bairiya, District Ballia.

36. Opposite party/ accused Hari
Singh through his counter affidavit has
explained the aforesaid criminal history.

37. It is observed that the existence of
criminal history of opposite party/ accused
Hari Singh is not controverted by him.
Merely offering an explanation does not
mean that it may be considered as having
no criminal history.

38. So far as mentioning of the
argument that during the incident opposite
parties Hari Singh and Raj Narain Pandey
also sustained firearm injury alongwith
deceased Jaleshwar Singh @ Balbeer singh
is concerned, it is not supported by the
record. It was also wrongly argued that
there
were
allegation
of
committing
conspiracy by the opposite parties Hari
Singh and Raj Narayan Pandey whereas in
the first information report they were
assigned a specific role of firing at
deceased Jaleshwar Singh @ Balbeer Singh
and they were named in the FIR as
shooters. It is apparent that learned trial
court did not verify this fact from the
record and it appears that in a routine
manner this argument was cut and pasted
from the previous bail order passed in
favour of Shabal Singh @ Amritesh Singh.
Suffice to mention here that learned trial
court in its observation has mentioned that
the allegation of conspiracy to kill deceased
Jaleshwar Singh @ Balbeer Singh has been
made against opposite parties Hari Singh
and Raj Narain Pandey. As discussed, the
observation of the learned trial court is not
based upon the record and also not based
upon the facts of the case.

39. Perusal of the case diary goes to
show that the statement of Jauhar Mistri
was noted down by the Investigating
Officer on 02.08.2021. Bail was granted by
the learned trial Court to opposite party/
accused Shabal Singh @ Amritesh Singh
on 05.08.2022. It is incorrectly observed by
the trial court that the statement of Jauhar
Mian was not recorded in case diary by the
Investigating Officer because at the time of
hearing of bail application and passing of
impugned order granting bail to Shabal
Singh @ Amritesh Singh, his statement was
very much available in the case diary. It
appears that learned trial court did not
4 All. Nitesh Kumar Singh Vs. State of U.P. & Anr.
17
consult the record in proper manner and
made observation otherwise. The witness
Jauhar Mistri specifically stated in his
statement given to the Investigating Officer
that the opposite party Shabal Singh @
Amritesh Singh had no dues against him.
He further stated that at the time of the
incident Shabal Singh @ Amritesh Singh
was sitting in the car next to Jaleshwar
Singh @ Balbeer singh. When firing took
place, he opened the door of the car and ran
away but he returned to close the door and
then again ran away. The conduct of the
opposite party/ accused Shabal Singh @
Amritesh Singh got corroboration from the
CCTV footage. This material evidence was
overlooked by the learned trial Court.

40. The incident of the present case
Crime No.167 of 2021 under Section
302/120B of IPC is said to have been
occurred on 07.07.2021. Amit Kumar
Varma,
the
witness
of
inquest
proceedings and alleged pairokar of the
informant,
lodged
First
Information
Report with Police Station Bairiya under
Section 506, 507 IPC naming Harish
Paswan, Hari Singh and Shabal Singh @
Amritesh Singh with the allegation that
they threatened and restrained him on
14.08.2021 from doing pairvi on behalf
of the informant Nitesh Kumar Singh
failing which he would also face dire
consequences. This threat was given by
Harish Paswan on a call made on the
mobile of Sameer Thakur. On receiving
this threat he promptly informed the
Superintendent of Police, Ballia that he
apprehended causing of death or grievous
hurt by the said persons. After the
investigation, a charge sheet came to be
filed against these persons. Therefore, it
is apparent that after releasing on bail
pursuant
to
impugned
bail
orders,
opposite parties Shabal Singh and Hari
Singh made threat to witness Amit Kumar
Varma of causing him death or grievous
hurt.

41. The informant in his first
information report mentioned that when
he was taking his brother to Sonbarasa
Hospital along with some persons, his
brother told him that Harish Paswan S/O
Indradev Paswan, R/O Babubel, Police
Station Haldi, Hari Singh S/O late Kedar
Singh R/O Bairiya and Raj Narayan
Pandey S/O late Singar Pandey R/O
Bairiya and two unknown persons had
shot him. His brother also told him that
Shabal
Singh
@
Amritesh
Singh
committed conspiracy to kill him.

42. It is to be noted here that the
statement of the informant Nitesh Kumar
Singh was noted down by the Investigating
Officer on 16.07.2021 while the impugned
bail order granting bail to opposite party
Shabal Singh @ Amritesh Singh was
passed on 05.08.2021. Therefore, the
statement of the informant Nitesh Kumar
Singh that deceased before his last breath
made an oral dying declaration was
available on record while passing the
impugned bail order dated 05.08.2021 but
it was not taken into consideration by the
trial court. Similarly, the statement of
Ranjana Singh-sister in law (bhabhi) of the
informant, was noted down by the
Investigating
Officer
on
17.08.2021
wherein she stated that when Jaleshwar
Singh @ Balbeer Singh was being taken to
the hospital by the informant after the
incident she was also sitting in the same car
and that she was also the witness of the said
oral dying declaration.

43. The statements of the informant
and Ranjana Singh were available on
record before the trial court but while
18 INDIAN LAW REPORTS ALLAHABAD SERIES
passing the impugned bail orders dated
28.04.2022 granting bail to opposite parties
Hari Singh and Raj Narain Pandey, these
statements were not considered by the trial
Court. Therefore, it can be said that the
credible evidence was not taken into
consideration by the trial Court.

44. Opposite parties Hari Singh and
Raj Narayan remained absconded soon
after the incident. Process of non bailable
warrants were issued against both of them.
Opposite party/accused Raj Narain Pandey
was arrested on 29.12.2021. Process of
section 82 Cr.P.C. was issued by the
competent court against opposite party/
accused
Hari
Singh.
A
reward
of
Rs.25,000/- was also declared on him to
ensure
his
presence
during
the
investigation. Pursuant to this process he
surrendered before the trial Court on
15.12.2021. This aspect was also not taken
into consideration while granting bail to
Hari Singh and Raj Narain Pandey by the
learned trial Court.

45. One important aspect to be taken into
consideration is that the co-accused Abhay
Bharti, who was identified through CCTV
footage, was granted bail by this Court. His bail
order was challenged before the Hon'ble Apex
Court by the informant/ Applicant in Criminal
Appeal
No.374/2022
(@SLP
(Crl.)
No.339/2022) and the bail granted to him was
cancelled by the Hon'ble Apex Court vide order
dated 07.03.2022.

46. The argument is advanced on behalf of
the opposite parties that the bail of co-accused
Abhay Bharti was cancelled by the Hon'ble
Apex Court since he was already convicted and
sentenced for imprisonment of life under
Section 302/506 IPC in another case, however,
none of the contesting opposite parties have
earlier been convicted.

47. This argument cannot be accepted
since there is no denial that the opposite parties
Shabal Singh @ Amritesh Singh and Hari
Singh had criminal history to their credit which
was concealed by them and they misled the trial
court into believing that they had no criminal
history to their credit. Moreover, the criminal
history to the credit of opposite parties are not
controverted by them.

48. The Hon'ble Apex Court in its order
date 07.03.2022 observed that it was second
case against co-accused Abhay Bharti under
Section 302 IPC. In the present matter also this
is a second case under Section 302 IPC against
opposite party/ accused Hari Singh. The order
of cancellation of bail granted to the co-accused
Abhay Bharti was also not considered by the
trial Court while passing the impugned order
dated 28.04.2022.

49. The learned trial Court while granting
bail to Shabal Singh @ Amritesh Singh vide
order dated 05.08.2021 overlooked the oral
dying declaration made by the deceased
Jaleshwar Singh @ Balbeer Singh about
involvement of opposite parties/accused who
were accompanied by two unknown persons.
Similarly, while passing the impugned bail
order dated 28.04.2022 the learned trial Court
completely overlooked the statements of the
informant and Ranjana Singh as noted down by
the Investigating Officer in which the oral dying
declaration of the deceased was narrated.

50. On the basis of the above discussion it
is concluded that:

(i) Opposite parties Shabal Singh
@ Amritesh Singh, Hari Singh and Raj
Narain Pandey were named in the first
information report. Opposite party Shabal
Singh @ Amritesh Singh committed
conspiracy to kill Jaleshwar Singh @
Balbeer Singh. Opposite parties Hari Singh
4 All. Nitesh Kumar Singh Vs. State of U.P. & Anr.
19
and Raj Narain Pandey were assigned the
role that they open fired with firearm
weapon at the Jaleshwar Singh @ Balbeer
Singh which resulted in his death.

(ii) The deceased before his last
breath made oral dying declaration before
the informant and Ranjana Singh about
involvement of these opposite parties in the
incident. These statements were noted
down by the Investigating Officer and were
available on record before the trial Court
while passing of the impugned bail orders.
This evidence was completely overlooked
by the trial court.

(iii)
Opposite
parties
Shabal
Singh @ Amritesh Singh and Hari Singh
had criminal history to their credit which
were concealed by them before the trial
Court.

(iv) Bail granted to the coaccused Abhay Bharti has been cancelled
by the Hon'ble Apex Court considering the
facts and circumstances of the case.

(v) The statement of Jauhar Mistri
was not taken into consideration by the trial
Court while it was already available on
record.

(vi) Pursuant to impugned bail
order after their release on bail another
Case Crime No. 207 of 2021, under Section
506, 507 IPC was registered against
opposite parties Shabal Singh @ Amritesh
Singh and Hari Singh and a charge sheet
has been submitted against them for the
offence of making threat of causing death
or grievous hurt to the witness of the case.

(vii) The learned trial Court
wrongly mentioned that opposite parties
Hari Singh and Raj Narain Pandey were
sitting in the same car with the deceased
and they also received firearm injury and
they committed conspiracy whereas a
specific role of firing with firearm weapons
at deceased were assigned to them and
neither they were medically examined nor
any medical report was available on record.

(viii) It was wrongly considered
by the trial court that opposite party Shabal
Singh @ Amritesh Singh also received
firearm injury but it was not supported by
any medical report. The observation made
by the learned trial court is factually
incorrect.

(ix) The learned trial court while
passing
impugned
bail
order
dated
28.04.2022 also overlooked the aspect that
opposite parties Hari Singh and Raj
Narain Pandey were absconding soon after
the incident and they eluded the process of
law.

51. The learned trial Court passed the
impugned
bail
orders
taking
into
consideration the incorrect facts of the case,
therefore,
all
the
bail
cancellation
applications deserve to be allowed.

52. Having considered the facts and
circumstances of the case, the material
available on record and the observations
made above, the Court is of the opinion that
the impugned bail orders dated 05.08.2021
and 28.04.2022 passed by learned trial
Court cannot be sustained. Accordingly, all
the aforesaid bail cancellation applications
are allowed and the impugned bail orders
dated 05.08.2021 and 28.04.2022 are
hereby set aside.

53. Opposite parties Shabal Singh @
Amritesh Singh, Hari Singh @ Hare Ram
Singh and Raj Narain Pandey are hereby
directed to surrender within a week before
the court concerned.

54. Any observation made above shall
not be treated as any finding on the merit
and shall not prejudice the trial.
20 INDIAN LAW REPORTS ALLAHABAD SERIES

55. Registrar (compliance) is also
directed to communicate this order to
District Judge concerned for necessary
compliance.
----------
(2023) 4 ILRA 20
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.04.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Crl. Misc. Bail Application No. 4824 of 2023

Jeetan Lodh @ Jitendra ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Pradyumn Shukla, Qasim Abbas Zaidi

Counsel for the Opposite Parties:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 376, 452 & 506 - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Section 3/4, Section
33
(8)
-
Special
Court
may
pay
compensation to children for any physical
or mental trauma for rehabilitation, The
Protection
of
Children
from
Sexual
Offences
Rules,
2020
-
Rule
9
-
Compensation,
The
Code
of
criminal
procedure, 1973 - Section 164 - Prosecutrix
became hostile - denied allegation of rape
against applicant. (Para -8 )
HELD:-If victim became hostile and does not
support
prosecution
case,
amount
of
compensation given to the victim or family
member should be recovered by the authorities
concerned who have paid the compensation.
State Government should pass orders and issue
directions
to
the
authorities
to
recover
compensation.(Para -11,12 )

Bail application allowed. (E-7)

(Delivered by Hon'ble Brij Raj Singh, J.)

1. Sri Arvind Mishra has filed his
power on behalf of O.P. No.2, complainant
which is taken on record.

2. Heard learned counsel for the
applicant,
learned
counsel
for
the
complainant and Sri Rajesh Kumar Singh,
learned A.G.A.-I for the State.

3. This bail application has been filed
by the applicant with a prayer to enlarge
him on bail in Case Crime No.225 of 2022
under Section 376, 452, 506 IPC and
Section 3/4 of POCSO Act, PS Gangaghat
distt. Unnao.

4. Learned counsel for the applicant
has submitted that PW-2 prosecutrix has
not supported the prosecution case in crossexamination. She has deposed before the
Court that she could not identify the person
who committed rape against her. She has
further stated that she had not seen the face
of the person who committed rape. She has
further stated that there is no enmity
between her family and the applicant. It has
been submitted that prosecutrix has totally
denied version of FIR as well as the version
of 164 CrPC before the Court. Once she
has denied the version under Section 164
CrPC and the FIR, at the moment the
applicant may not be held guilty and he is
liable to be granted bail. He has further
submitted that the PW-1 brother who is
complainant has also not supported the
prosecution case. The brother has stated
that some other person had written FIR and
he cannot read Hindi language, therefore,
he could not come to know how the FIR
was lodged. He has submitted that the
applicant has no criminal history and he is
in Jail since 20.5.2022.