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

- **Citation:** (2023) 5 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-23
- **Case number:** Crl. Misc. Bail Application No. 14987 of 2023
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-mishra-in-jail-v-state-of-u-p-50220
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 120-B, 302, 307, 376-D, 419,
420, 467, 468, 471, 406 & 506
-
Arbitration and Conciliation Act, - Section
- 11, 37 - Application for Bail - FIR - applicant
is a hard core criminal and a leader of Inter
District Gang and having history sheet of 85
cases in different districts and district wise
criminal history - gravity of allegations and
severity of punishment - court finds that,
applicant is very influential political figure of the
St. of UP and out of 85 case 13 cases are still
pending and in two cases he has already
convicted - therefore possibility cannot be ruled
5 All. Vjay Mishra Vs. State of U.P.
443
out that after release on bail, applicant may
tamper the witnesses - held, every crime
committed by an individual is the crime against
the society and it always affects the society at
large and if such persons who have criminal
antecedents of more than 80 cases would be
enlarged on bail then they can again commit
such offences and they may also create problem
for the St. to maintain law and order -
therefore, in the interest of public at large, bail
applicant accordingly rejected.
(Para - 29, 30)

Bail Application Rejected. (E-11)

List of Cases cited:

## Text

442 INDIAN LAW REPORTS ALLAHABAD SERIES
some other interest and was engulfed in
such activity instead of to be active and
diligent towards his profession. It also
appears that he used to have photographs
with dignitaries including Judges to show
him to be a very influential person. It also
appears that victim was trapped in the web
of pornography created by applicant and
she was forced to act in terms of directions
of applicant including to have physical
relationship with him as well as to allow
him to have photographs in indecent
manner. As such it may not be a case of
honeytrap rather the applicant has acted
beyond relationship of an advocate and
client and entered in an arena where social
boundaries were broken and later on led to
various disputes and allegations which
includes financial dispute also for that there
are
rival
claims.
The
allegation
of
pornography does not appear to be prima
facie substantiated with evidence collected
during investigation and thereafter the
victim has lodged the F.I.R. and contents
thereof
remained
consistent
in
her
statement recorded under Sections 161 and
164 Cr.P.C.

14. Above circumstances such as
factor of long consensual relationship,
nature of photographs, nature of evidence
in regard to allegation of pornography and
rival claims on financial dispute, may be
tilt towards applicant for consideration of
his bail application, however, a very crucial
factor still goes against applicant that he is
well acquainted with victim and have
intimacy also and since during trial
statement of victim has not been recorded
till date, therefore, at this stage, if applicant
gets bail, he will definitely try to influence
her.

15. Therefore, considering overall
aspects of present case, position of
applicant and nature of allegations, I do not
find any substantial ground to grant bail to
applicant at this stage. Accordingly, bail
application is hereby rejected and Trial
Court shall take all endeavour to record
statement of the victim expeditiously,
preferably within a period of three months
from today, if there is no legal impediment.

16. Registrar (Compliance) to take
steps.
----------
(2023) 5 ILRA 442
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.05.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Crl. Misc. Bail Application No. 14987 of 2023

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

Counsel for the Applicant:
Sri Saurabh Raj Srivastava, Sri G.S.
Chaturvedi (Sr. Advocate)

Counsel for the Opposite Party:
G.A., Sri Abhishek Yadav, Sri Ratnendu
Kumar Singh

Criminal Law - Indian Penal Code, 1860 -
Sections 120-B, 302, 307, 376-D, 419,
420, 467, 468, 471, 406 & 506
-
Arbitration and Conciliation Act, - Section
- 11, 37 - Application for Bail - FIR - applicant
is a hard core criminal and a leader of Inter
District Gang and having history sheet of 85
cases in different districts and district wise
criminal history - gravity of allegations and
severity of punishment - court finds that,
applicant is very influential political figure of the
St. of UP and out of 85 case 13 cases are still
pending and in two cases he has already
convicted - therefore possibility cannot be ruled
5 All. Vjay Mishra Vs. State of U.P.
443
out that after release on bail, applicant may
tamper the witnesses - held, every crime
committed by an individual is the crime against
the society and it always affects the society at
large and if such persons who have criminal
antecedents of more than 80 cases would be
enlarged on bail then they can again commit
such offences and they may also create problem
for the St. to maintain law and order -
therefore, in the interest of public at large, bail
applicant accordingly rejected.
(Para - 29, 30)

Bail Application Rejected. (E-11)

List of Cases cited:

1. Neeru Yadav Vs St. of U.P. (2016 (15) SCC 422),

2. Deepak Yadav Vs St. of UP & anr.(2022 (8)
SCC 559),

3. Prahlad Singh Bhati Vs NCT Delhi & anr.(2001
vol. 4 Supreme Court Cases 280),

4. Prasanta Kumar Sarkar Vs Ashis Chatterjee &
anr.(2010 vol. 14 SCC 496),

5. Ash Mohammad Vs Shiv Raj Singh (2012 vol.
9 SCC 446).

(Delivered by Hon'ble Sameer Jain, J.)

1. The instant bail application is listed
before this Bench by the order of Hon'ble
the Chief Justice dated 6.4.2023.

2. Heard Sri G. S. Chaturvedi, learned
Senior Counsel assisted by Sri Saurabh Raj
Srivastava,
learned
counsel
for
the
applicant; Sri Ratnendu Kr. Singh, learned
AGA for the State-respondent and Sri
Abhishek Kr. Yadav, learned counsel for
the informant.

Brief facts:-

3. FIR of the case was lodged on
1.9.2021. According to the FIR, applicant
and his son forcibly took possession over
the land of the informant including his
Firms and in this regard, informant lodged
an FIR against the applicant, his wife and
his son at P.S. Gopiganj, District Bhadhoi
at case crime No. 273 of 2020 and after
registration of the above noted case
applicant and his family members are
continuously threatening the informant and
pressuring him to withdraw the case and in
this regard, son of the informant lodged an
FIR at P.S. Gopiganj.

4. It is further mentioned in the FIR
that applicant forcibly on the basis of
illegal weapons has taken away the 19
vehicles of the informant and with the help
of those vehicles, he is doing his illegal
activities. It is further mentioned in the FIR
that applicant also has taken possession of
20 bigha land of the informant and also
prepared forged document of the same and
got executed a fake sale deed in favour of
his family members. As per FIR, applicant
is detained in Agra jail and he is having
criminal history of more than 84 cases and
he is also one of the main accused in the
case of causing serious injuries to Nand
Kumar Gupta @ Nandi.

Submission advanced on behalf of
the applicant:-

5.

Learned
counsel
for
the
applicant
submitted
that
entire
allegations made against the applicant
are totally false and baseless and
applicant is a respectable person of the
society and he was four consecutive
times M.P. from Giyanpur, Bhadoi and
entire story set up by the informant is
politically motivated and admittedly at
the time of lodgement of the FIR of the
present case applicant was in jail in
connection with another case.
444 INDIAN LAW REPORTS ALLAHABAD SERIES

6. He further submitted that applicant
was not made accused in the present matter
and
he
was
made
accused
during
investigation with the aid of section 120 B
IPC. He next submitted that applicant and
informant are family members and dozens
of civil and criminal cases are pending
between them. He further urged that
applicant
was
arrested
on
14.8.2020
pursuant to the FIR bearing case crime No.
273 of 2020 lodged by the informant and
thereafter informant and his sons alongwith
their associates with the help of local police
lodged 15 frivolous FIRs against applicant
and his family members.

7. He further submitted that actually
vehicles which were disclosed in the FIR
belong to the partnership Firm, M/s
Krishna Mohan Tiwari and with regard to
the partnership Firm, a dispute is pending
between informant and family of the
applicant. He further submitted that in the
above partnership Firm, wife of the
applicant is also one of the partner
alongwith the informant and one Ashok
Kumar and dispute with regard to the
partnership Firm has travelled up to this
Court and against the order passed by
District Judge, wife of the applicant and
informant both filed an appeal under
section 37 of Arbitration and Conciliation
Act and on 22.3.2021 this Court directed
the informant to prepare separate account
with regard to sale and purchase of the
property of the partnership Firm. He further
submitted that on 5.8.2021, this Court
clubbed both the aforesaid appeal filed by
the wife of applicant and informant.

8. He further submits that in the
Arbitration Petition in Schedule-III, 46 heavy
vehicles are mentioned as vehicles of the
Firm
and
these
include
the
vehicles
mentioned in the FIR and therefore, this fact
clearly suggest that the allegation with regard
to the forceful possession of the vehicles
mentioned in the FIR are totally false and in
fact these vehicles are the property of the
partnership Firm and dispute, with regard to
the partnership Firm, is pending between both
the parties.

9. He further submitted that informant,
being active partner of the aforesaid Firm, has
alienated most of the vehicles of the
partnership Firm and on 11.8.2021 wife of
the applicant and another partner moved an
application before this Court with a prayer to
direct the informant to deposit the amount
realized by him after selling the movable
property of the partnership Firm M/s Krishna
Mohan Tiwari.

10. He further submitted that although
as per the prosecution, six vehicles were
recovered from the premises of the applicant
on 20.11.2021 but out of six vehicles, four
vehicles were not even mentioned in the FIR
of the present case and only two vehicles
which were alleged to have been recovered
are mentioned in the FIR and both are
exclusive property of the Firm, M/s Krishna
Mohan Tiwari and are part of the arbitration
proceeding. He
further
submitted
that
applicant is having no concern with
remaining vehicles as neither these vehicles
are in the name of applicant nor these
vehicles are being used by the applicant.

11. He further submitted that partners
of the Firm also preferred a petition under
section 11 for appointment of the Arbitrator
and on 16.9.2022 this Court has appointed
Hon'ble Justice Vineet Saran, a retired
Judge of the Supreme Court as Arbitrator.

12. He further submitted that multiple
cases under Negotiable Instrument Acts are
also pending between the family of the
5 All. Vjay Mishra Vs. State of U.P.
445
informant and the family of the applicant.
He further submitted that multiple civil
disputes are also pending between the
families of both the sides.

13. He further submitted that although
in the FIR, it is alleged that applicant took
forcible possession of 19 vehicles but
neither date nor time nor place has been
mentioned. He further submits informant
neither furnished any information to the
police about the incident of alleged forceful
possession of the vehicle by the applicant.

14. He further urged that due to the
political rivalry and being opposition MLA
various criminal cases were lodged against
the applicant and till today, applicant has
been implicated in as many as 85 cases but
out of 85 cases, only in 13 cases applicant
is facing trial and in other cases applicant
has already either acquitted or proceedings
have been dropped by the prosecution. He
further submitted that out of 13 cases 8
cases are after the arrest of applicant i.e.
after 14.8.2020. He further submitted that
only on the basis of criminal antecedents of
an accused, bail should not be refused if
otherwise case of bail is made out.

15. He further submitted that although
applicant is in jail since 14.8.2020 with
regard to another case but in the present
matter also applicant is in jail for almost
one and a half years. He lastly urged that
informant is also having criminal history of
9 cases and therefore, considering the facts
and circumstances of the case applicant
may be released on bail.

Submission advanced on behalf of
the State and informant:-

16. Per contra, learned AGA as well as
learned counsel for the informant vehemently
opposed the prayer for bail and submitted that
there is specific allegation against the
applicant that being MLA, he misused his
position and status and after forcibly taking
possession over the property of the informant,
is continuously threatening him and he on the
basis of illegal weapons took forcible
possession of 19 vehicles of the informant.
They further argued that six vehicles were
recovered from the hot mix plant of the
applicant on 20.11.2021 and even as per the
applicant out of six vehicles, four did not
belong to partnership Firm and applicant also
did not claim these vehicles and this fact
clearly suggest that the recovered vehicles
were of informant.

17. They further submitted actually
Firm, M/s Krishna Mohan Tiwari is not a
partnership Firm but it is the Firm of
informant and only to take possession of the
Firm, applicant and his family members
started claiming that the Firm is a partnership
Firm and merely pendency of dispute does
not dilute the seriousness of the allegation
made against the applicant.

18. Learned AGA further submitted
that there is specific allegation against the
applicant in the FIR that he not only took
possession over the property of the informant
but he is also continuously threatening the
informant to withdraw the case lodged by the
informant against him and thereafter he on
the gun point, forcibly took the vehicles of
the informant and if inspite of these
allegations his name is not in the array of the
accused then it does not mean, there is no
accusation against him in the FIR and
therefore, no benefit can be extended to him
on the ground that he was not made accused
in the FIR.

19. He next submitted that applicant
is a hard core criminal and a leader of Inter
446 INDIAN LAW REPORTS ALLAHABAD SERIES
District Gang beaing registration No. D-12
at police station Gopiganj District Bhadohi
and having history sheet No. 2-B P.S.
Handia, District Prayragraj. Learned AGA
further pointed out that applicant is having
criminal history of about 85 cases in
different districts and district wise criminal
history has been appended alongwith the
counter affidavit. He further submitted that
after perusal of the criminal history of the
applicant, it appears that he is not an
ordinary criminal but a hardened criminal
who involved in heinous and serious crimes
like forceful possession of the Government
property, possession of AK-47 and its
ammunition, cases under section 307 IPC
and U.P. Gangsters Act and number of
times he has been detained under the
provisions of National Security Act.

20. Learned AGA further submits that
applicant was also made accused in number
of cases of 302 IPC although due to his
influence, he could not be convicted. He
further submits, in number of cases
applicant threatened the witnesses of the
cases including the victim of case under
section 376 D IPC. He further submitted
that against the applicant, a case was also
registered in the State of West Bengal.

21. Learned AGA further pointed out
that recently applicant has also convicted in
two cases of Arms Act, therefore, there is
every possibility that after release on bail,
he will temper the witnesses and such
hardened criminal should not be released
on bail.

22. He placed reliance on the
judgement of the Apex Court passed in the
case of Neeru Yadav Vs. State of U.P.
reported in [2016 (15) SCC 422] and
Deepak Yadav Vs. State of U.P. and
another reported in [2022(8) SCC 559].

Analysis:-

23. Applicant is X-MLA and he was
four
consecutive
times
MLA
from
Giyanpur, Bhadoi. Allegation against the
applicant is that he misused his position
and status and took possession over the
properties of the informant and when
informant lodged FIR against him then he
is continuously threatening him alongwith
his other family members and thereafter he
forcibly took 19 vehicles of the informant
on the point of illegal weapons.

24. As per the prosecution, six
vehicles were recovered from the hot mix
plant of the applicant. Although as per the
applicant, the vehicles in question belonged
to the partnership Firm and with regard to
the partnership Firm, a dispute is pending
before this Court, in which an Arbitrator
has also been appointed but allegation
made against the applicant are serious in
nature and there is not only allegation of
forceful possession of the vehicles of the
informant but there are various allegations
against the applicant like taking possession
over 20 bigha land of the informant and
threatening the informant.

25. Applicant is a well known
political figure of the State of Uttar Pradesh
and he was also X-MLA, therefore, it was
his responsibility to maintain law and order
but his criminal antecedents of about 85
cases indicates othewise and from its
perusal, it appears that he indulged in every
type of crime including murder, rape,
attempt to commit murder etc.

26. The Apex Court in the case of
Prahlad Singh Bhati Vs. NCT, Delhi and
another reported in [(2001) 4 Supreme
Court Cases 280] highlighted the aspect
which should be considered by the Court
5 All. Vjay Mishra Vs. State of U.P.
447
while dealing with bail applications and
observed as follows:-

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

(emphasis supplied)

27. Again in case of Prasanta Kumar
Sarkar Vs. Ashis Chatterjee and another
reported in [(2010) 14 Supreme Court Cases
496] also observed as follows:-

"9. We are of the opinion that the
impugned order is clearly unsustainable. It is
trite that this Court does not, normally, interfere
with an order passed by the High Court
granting or rejecting bail to the accused.

However, it is equally incumbent
upon the High Court to exercise its
discretion
judiciously,
cautiously
and
strictly in compliance with the basic
principles laid down in a plethora of
decisions of this Court on the point. It is
well
settled
that,
among
other
circumstances, the factors to be borne in
mind while considering an application for
bail are:

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

(ii) nature and gravity of the
accusation;

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

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

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

(vi) likelihood of the offence
being repeated;

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

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

(emphasis supplied)

28. Therefore, from the above
decisions of the Apex Court, it appears that
although granting or rejecting the bail is
discretionary
power
but
discretionary
power should be exercised judiciously and
while granting bail to an accused the Court
should not only consider the nature of
evidence,
gravity
of
allegations
and
severity of punishment but should also
consider the character, behavior, means and
standing of the accused and reasonable
possibility of securing the presence of the
accused at trial, reasonable apprehension of
the witnesses being tampered with and the
larger interest of the public and the State
and further, while granting bail, Court
448 INDIAN LAW REPORTS ALLAHABAD SERIES
should also consider the danger, of course,
of justice being thwarted by grant of bail.

29. Applicant is very influential
political figure of the State of Uttar Pradesh
and as many as 85 cases were lodged
against him and 13 cases are still pending.
From perusal of the list of the cases, it
reflects that number of cases were of
serious and heinous crimes and in two
cases he has already convicted, therefore,
possibility cannot be ruled out that after
release on bail, applicant may tamper the
witnesses specially when such allegation
against the applicant is itself in the FIR of
the present case.

30. Further, every crime committed
by an individual is the crime against the
society and it always affects the society at
large and if such persons who have
criminal antecedents of more than 80 cases
would be enlarged on bail then they can
again commit such offences and they may
cause danger to the society and they may
also create problems for the State to
maintain law and order, therefore, in the
interest of the public at large and State,
they in general should not be released on
bail.

31. Although it appears that applicant is
in jail since 14.8.2020 and in the present
matter, he is in jail for last about one and a
half years but the period of custody of an
accused has to be weighed simultaneously
with the totality of the circumstances and the
criminal antecedents of the accused and the
circumstances which may justify the grant of
bail are to be considered in the larger context
of the societal concern involved in releasing
an accused, in juxtaposition to individual
liberty of the accused seeking bail [See: Ash
Mohammad. Vs. Shiv Raj Singh reported in
(2012) 9 SCC 446].

32. In case of Neeru Yadav (supra) on
which reliance was placed by the learned
AGA, Apex Court held that while granting
bail to an accused who is having criminal
antecedents the Courts should be very
cautious and Court cannot ignore the
criminal antecedents of the accused. The
Apex Court in case of Neeru Yadav
(supra) further observed that law expects
the judiciary to be alert while admitting
these kind of accused persons to be at large.

33. Therefore, it is lucid that while
deciding bail application, criminal antecedents
of the accused can not be ignored.

34. Therefore, from the discussion
made above, in my view, applicant is not
entitled to be released on bail.

35. Accordingly the instant bail
application stands rejected.
----------
(2023) 5 ILRA 448
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

THE HON'BLE GAUTAM CHOWDHARY, J.

Crl. Misc. First Bail Application No. 16312 of
2023

Chhotu @ Raju ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Atul Kumar

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 161 & 164 - Indian Penal
Code, 1860 - Section - 376(2-G), -