# Shiv Sagar @ Pankaj Mishra v. State of U.P

- **Citation:** (2022) 5 ILRA 202
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-07
- **Case number:** Criminal Misc. Bail Application No. 11033 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-sagar-pankaj-mishra-v-state-of-u-p-48487
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail -
Indian Penal Code, 1860 - Sections 147,
148, 149, 302, 307, 404, 120-B & 34 - 'the
bail is a right and denial is an exception' -
does not mean that the bail should be
granted in every case - at the time of
considering the bail application of an
accused - necessary for the Judge to
consider whether the accused is a firsttime offender or has been accused of
other offences - if so, nature of such
offences and his or her general conduct.
(Para - 27)
5 All. Shiv Sagar @ Pankaj Mishra Vs. State of U.P.
203
After getting bail in first criminal case - applicant
committed several offences - misused the liberty
of bail granted by the competent court of law.
(Para - 24)

HELD:-Repeated offender who repeats any
crime while he/she is on bail in earlier
case/cases should not be granted bail as he/she
may again misuse the liberty of bail therefore
instead of granting bail, the direction to
expedite the trial should be issued. (Para - 26)

Bail application rejected. (E-7)

List of Cases cited:-

## Text

202 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Let the applicants-Ajay Kumar
Pal and Vijay Kumar Pal, be released on
bail in the aforesaid case crime number on
their
furnishing
personal
bond
of
Rs.1,00,000/- each and two sureties of
Rs.50,000/- each by both the applicants to
the satisfaction of the court concerned with
the following conditions:-

(i) The applicants shall file an
undertaking to the effect that they shall not
seek any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(ii) The applicants shall remain
present before the trial court on each date
fixed, either personally or through their
counsel. In case of their absence, without
sufficient cause, the trial court may proceed
against them under Section 229-A of the
Indian Penal Code.

(iii) In case, the applicants misuse
the liberty of bail during trial and in order
to secure their presence proclamation under
Section 82 Cr.P.C. is issued and the
applicants fail to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against them, in accordance with law, under
Section 174-A of the Indian Penal Code.

(iv) The applicants shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicants is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against them in
accordance with law.

(v) The present applicants shall
not leave the country without prior
permission of the Court.

25. Before parting with, it is expected
that the trial shall be concluded with
expedition in terms of Section 309 Cr.P.C.
Further, the learned trial court may take all
coercive measures, as per law, if either of
the parties does not co-operate in the trial
properly.
----------
(2022)05ILR A202
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.05.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 11033 of
2018

Shiv Sagar @ Pankaj Mishra ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Arun Kumar Tripathi, A P Mishra

Counsel for the Opposite Party:
G.A., Ashok Kr. Sravastav

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 439 - Bail -
Indian Penal Code, 1860 - Sections 147,
148, 149, 302, 307, 404, 120-B & 34 - 'the
bail is a right and denial is an exception' -
does not mean that the bail should be
granted in every case - at the time of
considering the bail application of an
accused - necessary for the Judge to
consider whether the accused is a firsttime offender or has been accused of
other offences - if so, nature of such
offences and his or her general conduct.
(Para - 27)
5 All. Shiv Sagar @ Pankaj Mishra Vs. State of U.P.
203
After getting bail in first criminal case - applicant
committed several offences - misused the liberty
of bail granted by the competent court of law.
(Para - 24)

HELD:-Repeated offender who repeats any
crime while he/she is on bail in earlier
case/cases should not be granted bail as he/she
may again misuse the liberty of bail therefore
instead of granting bail, the direction to
expedite the trial should be issued. (Para - 26)

Bail application rejected. (E-7)

List of Cases cited:-

1. Ramesh Bhavan Rathod Vs Vishanbhai
Hirabhai Makwana Makwana (Koli) & anr., AIR
2021 SC 2011

2. Rishipal @ Rishipal Singh Solanki Vs Raju &
anr., Criminal Appeal No. 541 of 2022

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

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Mr. A.P. Mishra, learned
counsel for the applicant, Mr. Rupendra
Kumar Singh, learned Additional Government
Advocate appearing on behalf of the State and
Mr. Ashok Kumar Srivastava, learned counsel
for the complainant/informant.

2. As per Mr. Mishra, the present
applicant is in jail since 26.09.2018, in Case
Crime No.302 of 2016, under Sections 147,
148, 149, 302, 307, 404, 120-B & 34 I.P.C.
Police Station- Baaghrai, District-Pratapgarh.
Learned counsel for the applicant has
submitted that the present applicant has been
falsely implicated in the case as he has not
committed any offence as alleged.

3. As per the prosecution case, in the
mid night of 11.12.2016 the complainant
along with his brother Rajesh Singh,
Dheeraj Singh, Sonu Singh, Poonam Singh,
wife of Rajesh Singh, Harshvardhan Singh
son of Rajesh Singh were returning to his
home after attending an invitation in Tiwari
Mahamadpur. When they reached at
Kamsin Tiraha then the accused persons
armed with fire arms and bombs attacked
on them. It is further mentioned in the first
information report that due to the firing
Rajesh Singh died on spot and Dheeraj
Singh and Sonu Singh received grievous
injuries. It is also alleged in the first
information report that during commission
of crime the accused persons also looted a
licensed pistol and cash of Rs.1,50,000/-
and some papers of the deceased.

4. Learned counsel for the applicant
has submitted that on the complaint
submitted by informant/complainant as
many as 18 persons including the present
applicant has been arrested.

5. Learned counsel for the applicant
has submitted that an unexplained delay of
more than 14 hours in lodging of first
information report renders the prosecution
story wholly unreliable particularly when
the informant alleges himself to be eye
witness.

6. It has been submitted on behalf of
the
applicant
that
the
complainant,
deceased Rajesh Singh and alleged injured
Dheeraj Singh are notorious criminals and
there is long criminal history to their
credits. The aforesaid persons are also
history-sheeters and due to their criminal
activities, the deceased and alleged injured
persons have been caused injuries by some
unknown persons in dark hours of winter
night and no one could identify the actual
assailants. It is also submitted that the
complainant was not accompanied with the
204 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased and alleged injured persons at the
time of alleged incident and when he came
to know about the aforesaid incident then
he lodged a false first information report
against those persons, with whom he is on
inimical terms, leveling therein totally false
and fabricated allegations, just to settle the
score of enmity.

7. It is also submitted that neither the
complainant nor the wife and son of the
deceased have received any type of injury in
the alleged incident. This fact itself creates
doubt on their presence at the place of
incident at the time of alleged incident. The
alleged injured Sonu Singh has also denied
the presence of complainant and the wife and
son of deceased at the place of incident at the
time of alleged incident. From perusal of the
statements of alleged injured persons namely
Dheeraj Singh and Sonu Singh, it is clear that
the alleged incident took place in foggy
winter night and due to the darkness and fog
the accused persons could not be identified
by them. From perusal of the statements of
alleged injured persons, it is clear that their
statements have been recorded after about
one month of the alleged incident when they
were medically fit.

8. It is also submitted that the injury
reports of the alleged injured persons reveal
that they were brought by Sanjay Singh and
Kamlesh Pratap Singh for their medical
examination not by the complainant, Poonam
Singh and Harsh Vardhan Singh, who have
claimed themselves to be the eye witnesses of
the alleged incident. This fact itself creates
doubt
C21HE692on
the
presence
of
complainant, Poonam Singh and Harsh
Vardhan Singh at the place of incident at the
time of alleged incident.

9. From perusal of the first
information report as well as the statement
of the complainant, recorded U/S-161
Cr.P.C., it is clear that no specific role has
been assigned to the applicant and only
general role has been assigned to all the
alleged accused persons. From perusal of
the post mortem report of deceased, it is
clear that the deceased had received only
two injuries on his person and he died
because of the injury no.1, which is a fire
arm injury, and the prosecution is silent on
this point that who is author of said injury.
It has also been submitted that on
28.03.2017, the wife of deceased namely
Smt.
Poonam
Singh
had
given
an
application before the Deputy Inspector
General of Police, Allahabad Range,
Allahabad, mentioning therein that the
statements,
U/S-161
Cr.P.C.
of
the
witnesses, including her, have not been
recorded correctly, that's why she as well as
the other witnesses are giving their
statements on affidavit, alongwith the
application.

10. Learned counsel for the applicant
has submitted that the applicant has a
criminal history of four cased, details of
which have been given in paragraph no.22
of the bail application.

11. Learned counsel for the applicant
has submitted that this Court has granted
bail to the co-accused Santosh Vaish in Bail
No.7415 of 2017 and Rohit Singh in Bail
No.8679 of 2017 vide order dated 5.2.2018.
The complainant/informant has challenged
the bail order of co-accused Rohit Singh
before Hon'ble Apex Court by filing
Special
Leave
to Appeal
(Criminal)
No.5018 of 2018 contending that the said
accused while on bail in the present case
has committed two more serious offences.
Therefore the Hon'ble Apex Court has
observed vide order dated 6.9.2019 that the
Investigating Officer should immediately
5 All. Shiv Sagar @ Pankaj Mishra Vs. State of U.P.
205
move for cancellation of bail against the
said accused before the High Court and if
such application is filed, same shall be
decided on merits.

12. Pursuant to the aforesaid direction
of the Hon'ble Apex Court the application
for cancellation of bail was filed before this
Court bearing Bail No.9677 of 2019 and
this Court vide order dated 27.01.2020
cancelled the bail of co-accused Rohit
Singh.

13. Learned counsel for the applicant
further submitted that the bail of coaccused Santosh Vaish was not assailed and
such order is still maintained. He has
further submitted that this Court has also
granted bail to other co-accused persons
namely Pankaj Pasi @ Pankaj Saroj in Bail
No.1030 of 2018 vide order dated 9.2.2018
and to Jwala Singh @ Kuldeep Singh in
Bail No.973 of 2018 vide order dated
8.2.2018. One more co-accused Pramod
Kumar Singh has been granted bail vide
order dated 16.2.2018, passed in Bail
No.1169 of 2018, however, an application
for cancellation of his bail is pending
consideration. It has also been informed
that this Court vide recent order dated
8.4.2022 rejected the bail application of
one of the co-accsued Sunil Kumar Gupta
@ Bachcha in Criminal Misc. Bail
Application No.10805 of 2019, vide order
dated 4.1.2022.

14. To summarize, learned counsel for
the applicant has submitted that the bail
orders of the co-accused Santosh Vaish,
Pakka Pasi @ Pankaj Saroj, Jwala Singh @
Kuldeep Singh are still intact, whereas the
bail of Rohit Singh, Sunil Kumar Gupta @
Bachcha has been cancelled. He has further
submitted that there may not be any parity
in rejection of the bail order as the parity is
considered for the bail orders granted in
favour of the co-accused persons.

15. Therefore, on the basis of the
aforesaid facts and considering the period
of incarceration of the present applicant, he
may be released on bail giving parity with
the aforesaid co-accused persons who have
been enlarged on bail by this Court. He has
also submitted that there is no possibility to
conclude the trial in near future, therefore,
the present applicant may not be compelled
for pre-trial detention as the same shall be
violative of Article 21 of the Constitution
of India.

16. Learned A.G.A. as well as Mr.
Ashok Kumar Srivastava, learned counsel
for
the
complainant/informant
have
vehemently opposed the aforesaid bail
application.

17. Mr. Srivastava has submitted that
the applicant is a hardened and habitual
criminal. He is having a criminal history of
ten cases including the present one.

18. Mr. Srivastava, learned counsel
for the informant has submitted that eyewitness has fully supported the prosecution
version. He has drawn attention of this
Court towards the statement of Manoj
Kumar Singh informant/complainant and
Smt. Poonam Singh wife of the deceased,
wherein the name of the present applicant
has been taken. Further, the injured
witnesses namely Sonu Singh and Dheeraj
Singh also supported the prosecution case.
He has also submitted that in similar
circumstances the bail of co-accused Sunil
Kumar Gupta @ Bachcha (Criminal Misc.
Bail Application No.10805 of 2019) has
been canceled by this Court and said coaccused was having similar role as the
present
applicant,
therefore,
the
bail
206 INDIAN LAW REPORTS ALLAHABAD SERIES
application of the present applicant may be
rejected.

19. Mr. Srivastava, learned counsel
for the complainant has drawn attention of
this Court towards paragraph no.22 of the
bail application, wherein the applicant has
disclosed that he is having a criminal
history of four cases, whereas the present
applicant is having a criminal history of ten
cases as indicated in paragraph no.17 of the
counter
affidavit
of
the
complainant/informant.
No
rejoinder
affidavit to that counter affidavit has been
filed,
therefore,
Mr.
Srivastava
has
submitted that the present applicant has
concealed the entire criminal history.

20. Mr. Srivastava, learned counsel
for the complainant has place reliance on
the dictum of Hon'ble Apex Court in the
case of Ramesh Bhavan Rathod Vs.
Vishanbhai Hirabhai Makwana Makwana
(Koli) and another; reported in AIR 2021
SC 2011 to contend that while considering
the bail application of the accused,
particularly considering the principle of
parity, the gravity of the offence, nature of
offence and general conduct of the accused
should be perused carefully.

21. He has also drawn attention of this
Court
towards
decision
rendered
by
Hon'ble Apex Court dated 1.4.2022 in the
case of Rishipal @ Rishipal Singh Solanki
Vs. Raju and another; Criminal Appeal
No.541 of 2022 arising out of Special
Leave Petition (Criminal) No.1743 of 2022
to contend that when the bail application of
the co-accused is dismissed, factors which
led to such dismissal must be considered
while deciding the bail application of the
other co-accused persons.

22. I have considered the submissions
of learned counsel for parties and perused
the material available on record.

23. At the very outset, I must observe
that the applicant has disclosed his criminal
history of as many as four cases which he
has explained in para no.22 of his bail
application. The learned counsel for the
complainant has however submitted in
para-17 of the counter affidavit that he is a
hardened criminal having a long criminal
history of ten cases which has not been
disclosed and explained in the bail
application
or
in
the
supplementary
affidavits, the details of which are as under:

"1. Case Crime No. 142 of 2007,
under sections 325 & 323 IPC, Police
Station-Baghrai, District- Pratapgarh.

2. Case Crime No. 10 of 2013,
under sections 395 & 412 IPC, Police
Station- Soraun, District- Allahabad.

3. Case Crime No. 31 of 2016,
under sections 448, 506 IPC and 3/5 of
Damage to the Public Property Act, Police
Station Baghrai, District- Pratapgarh.

4. Case Crime No. 82 of 2016,
under sections 110 Cr.P.C. Police StationBaghrai, District- Pratapgarh. The case is
under trial.

5. Case Crime No. 91 of 2016,
under section 3 (1) U.P. Gangster Act,
Police
Station-
Baghrai,
District-
Pratapgarh.

6. Case Crime No. 143 of 2016,
under sections 376-G, 506 IPC and 3
(2)(V) SC/ST Act, Police Station- Baghrai,
District Pratapgarh.

7. Case Crime No. 197 of 2016,
under sections 379 IPC and 3/4 of Damage
to the Public Property Act. Police Station
Baghrai, District- Pratapgarh.
5 All. Shiv Sagar @ Pankaj Mishra Vs. State of U.P.
207

8. N.C.R. No. 221 of 2015, under
sections 323, 504, 506 IPC, Police StationBaghrai, District- Pratapgarh.

9. Case Crime No. 227 of 2016,
under sections 307 IPC, Police Station-
Baghrai, District- Pratapgarh.

10. Case Crime No. 302 of 2016,
under sections 147, 148, 149, 302, 307,
404, 120-B, 34 IPC, Police Station-
Baghrai, District Pratapgarh. (This is the
present case)."

24. Therefore, it is clear that after
getting bail in first criminal case the present
applicant has committed several offences,
so it would be appropriate to observe here
that he has misused the liberty of bail
granted by the competent court of law.

25. When any accused person is
released on bail in his/her first criminal
case, he/she gives his/her undertaking
before the competent court concerned that
he/she shall not misuse the liberty of bail.
During period of bail if he/she again
commits any offence and was arrested,
he/she files the next bail application in such
crime case making specific and categorical
submission and undertaking that he/she
shall not misuse the liberty of bail then, the
competent court considering the aforesaid
undertaking grants bail. Again during the
period of bail such accused person commits
another offence and obtains bail, it would
mean that he/she has got no respect towards
the order of the Court whereby he/she has
been granted bail and at the same time
he/she
does
not
care
about
his/her
undertaking that he/she shall not misuse the
liberty of bail.

26. In nutshell, the repeated offender
who repeats any crime while he/she is on
bail in earlier case/cases should not be
granted bail as he/she may again misuse the
liberty of bail therefore instead of granting
bail, to me, the direction to expedite the
trial should be issued.

27. The Hon'ble Apex Court in the
case of Dataram Singh Vs. State of U.P.
and another reported in (2018) 3 SCC 22
has observed that 'the bail is a right and
denial is an exception' but it does not mean
that the bail should be granted in every
case. Further, at the time of considering the
bail application of an accused it is also
necessary for the Judge to consider whether
the accused is a first-time offender or has
been accused of other offences and if so,
the nature of such offences and his or her
general conduct.

28. The Hon'ble Apex Court in a
recent judgment of Ramesh Bhavan
Rathod (supra) has observed in paragraphs
22 and 32 as under:

"22. We are constrained to
observe that the orders passed by the High
Court granting bail fail to pass muster
under the law. They are oblivious to, and
innocent of, the nature and gravity of the
alleged offences and to the severity of the
punishment in the event of conviction. In
Neeru
Yadav
Vs.
State
of
U.P.
MANU/SC/1208/2014 : (2014) 16 SCC
508, this Court has held that while
applying the principle of parity, the High
Court cannot exercise its powers in a
capricious manner and has to consider the
totality of circumstances before granting
bail. This Court observed:

17. Coming to the case at hand, it
is found that when a stand was taken that
the 2nd Respondent was a history sheeter, it
was imperative on the part of the High
Court to scrutinize every aspect and not
capriciously
record
that
the
2nd
Respondent is entitled to be admitted to
208 INDIAN LAW REPORTS ALLAHABAD SERIES
bail on the ground of parity. It can be
stated with absolute certitude that it was
not a case of parity and, therefore, the
impugned order clearly exposes the nonapplication of mind. That apart, as a matter
of fact it has been brought on record that
the 2nd Respondent has been charge
sheeted in respect of number of other
heinous offences. The High Court has
failed to take note of the same. Therefore,
the order has to pave the path of extinction,
for its approval by this Court would
tantamount to travesty of justice, and
accordingly we set it aside.

32. Our analysis above would
therefore lead to the conclusion that there
has been a manifest failure of the High
Court to advert to material circumstances,
especially the narration of the incident as it
appears in the cross FIR which was lodged
on 13 May 2020. Above all, the High Court
has completely ignored the gravity and
seriousness of the offence which resulted in
five homicidal deaths. This is clearly a case
where the orders passed by the High Court
suffered from a clear perversity."

(emphasis supplied)

29. Notably, the bail of the co-accused
Sunil Kumar Gupta @ Bachcha in Criminal
Misc. Bail Application No.10805 of 2019 has
been rejected by this Court vide order dated
4.1.2022 considering the gravity of offence and
the statement of eye witnesses and the injured
persons.

30. Besides, the bail of another coaccused Rohit Singh has been cancelled by this
Court pursuant to the directions of Hon'ble
Apex Court considering the gravity of the
offence, statements of eye witnesses and the
injured persons as well as the fact that such coaccused persons have misused the liberty of bail
granted by this Court.

31. Therefore, without entering into the
merits of the issue and going through the
material available on record, the statements of
eye witnesses and injured persons recorded
under Section 161 Cr.P.C., checkered criminal
history of the present applicant, I do not find
any good ground to grant bail to the present
applicant as no case for bail is made out.

32. Accordingly, bail application is
rejected.

33. Further, I am not convinced to grant
parity to the present applicant with those coaccused persons who have been granted bail by
this court inasmuch as the present applicant has
got a long criminal history and such history has
not been disclosed or explained in his bail
application or subsequent affidavits, so this fact
alone disentitles him to get parity.

34. Before parting with, it is expected that
the trial shall be concluded with expedition, say,
within a period of one year. Further, the learned
trial court may take all coercive measures as per
law if either of the parties do not co-operate in
the trial properly. The learned trial court shall
fix short dates to ensure that trial is concluded
within a period of nine months in terms of
Section 309 Cr.P.C..
----------
(2022)05ILR A208
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.04.2022

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Criminal Misc. Bail Application No. 12587 of
2021

Ashok Kumar ...Applicant
Versus
State of U.P. ...Opposite Party