# Vipin Tiwari v. State of U.P

- **Citation:** (2025) 5 ILRA 973
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-08
- **Case number:** Criminal Misc. Bail Application No. 3971 of 2025
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-tiwari-v-state-of-u-p-53554
- **Pages:** 14

## Headnote

974 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Bhartiya Nyaya Sanhita,
2023 - Sections 109(1), 324(4), 351(3),
103(1) & 61(2) - Bharatiya Nagarik
Suraksha Sanhita, 2023 - Sections 180,
192 & 230 - Preliminary objection raised
against maintainability of bail application,
as extracts from case diary, despite
investigation being incomplete, have been
annexed - This suggests applicant may
influenced investigation and Investigation
Officer may try to protect accused -
Annexing extracts of case diary become
common practice and not annexing is
exception - When photo copies are
freely provided to persons doing Pairvi
of cases, copies of extracts of case diary
having been annexed in bail application
would not make ground for rejection of
bail
application
without
examining
merits by Court - Objection rejected -
F.I.R lodged 37 hours after incident -
Old
enmity
between
parties
-
Registration number of Bolero vehicle
which
hit
motorcycle
remains
unidentified
despite
examination
of
footage of numerous CCTV cameras and
applicant not linked to it - Call records
and
photo
from
High
Court
photo
affidavit centre shows his presence in
premises of High Court which is 175 km
away from place of incident - Coaccused already granted bail - Applicant
entitled to be released on bail. (Para 4,
21, 23, 44)

Application allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,998 of 46,017. This is a partial read: ask again with offset=39998 for what follows._

5 All. Vipin Tiwari Vs. State of U.P.
973
meticulous
precision
maintaining
balance between the conflicting interest,
namely, sanctity of individual liberty and
interest of society.

10-In the case of Sushila Aggarwal
and others vs State (NCT of Delhi) and
another (2020)5 SCC 1, it has been
propounded by the Hon'ble Apex Court that the
anticipatory bail need not be of limited duration
invariably. In appropriate case it can continue
up to conclusion of trial. Further the power to
grant anticipatory bail vested in High Court
does not comes to an end after submission of
charge sheet. If the fact of the given case make
the applicant entitled for grant of anticipatory
bail, even after submission of charge sheet
against him and cognizance of the same by the
Court, the second anticipatory bail would be
maintainable before the High Court even
though the applicant was earlier granted
anticipatory bail till the submission of charge
sheet by the High Court.

11-In the light of the above discussion,
looking to the facts and circumstances of this
case, submissions of learned counsel for the
parties as mentioned above, this Court feels that
aforesaid interim anticipatory bail order
11.03.2025 is liable to be confirmed.

12-As a fallout and consequence of the
above, aforesaid interim anticipatory bail order
dated 11.03.2025 granted in favour of the
applicant is made absolute till conclusion of the
trial, subject to following conditions:-

 (i) That the applicant shall cooperate
with the expeditious disposal of the trial and
shall regularly attend the court on each date
unless inevitable.

 (ii) That 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 tamper with
the evidence.

 (iii) That the applicant shall not
involve in any criminal activity.

 (iv) In case of breach of any of the
conditions mentioned above, it will be open to
the prosecution to move an appropriate
application for cancellation of this anticipatory
bail order before this Court

13-With the aforesaid observations
and directions, the instant anticipatory bail
application is allowed.

14-It is clarified that the observations
made above are limited for the purpose of
determination
of
this
anticipatory
bail
application and will in no way be construed as
an expression on the merits of the case. The trial
court concerned shall be absolutely free to
arrive at its independent conclusions according
to law on the basis of materials / evidences on
record.
----------
(2025) 5 ILRA 973
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 08.05.2025

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 3971 of 2025

Vipin Tiwari ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Ajai Kumar Shukla, Nisha Devi

Counsel for the Opposite Party:
G.A.
974 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Bhartiya Nyaya Sanhita,
2023 - Sections 109(1), 324(4), 351(3),
103(1) & 61(2) - Bharatiya Nagarik
Suraksha Sanhita, 2023 - Sections 180,
192 & 230 - Preliminary objection raised
against maintainability of bail application,
as extracts from case diary, despite
investigation being incomplete, have been
annexed - This suggests applicant may
influenced investigation and Investigation
Officer may try to protect accused -
Annexing extracts of case diary become
common practice and not annexing is
exception - When photo copies are
freely provided to persons doing Pairvi
of cases, copies of extracts of case diary
having been annexed in bail application
would not make ground for rejection of
bail
application
without
examining
merits by Court - Objection rejected -
F.I.R lodged 37 hours after incident -
Old
enmity
between
parties
-
Registration number of Bolero vehicle
which
hit
motorcycle
remains
unidentified
despite
examination
of
footage of numerous CCTV cameras and
applicant not linked to it - Call records
and
photo
from
High
Court
photo
affidavit centre shows his presence in
premises of High Court which is 175 km
away from place of incident - Coaccused already granted bail - Applicant
entitled to be released on bail. (Para 4,
21, 23, 44)

Application allowed. (E-13)

List of Cases cited:

1. Sidharth Vs St. of Bihar: (2005) 12 SCC 545,
(Para 27)

2. Balakram Vs St. of Uttarakhand: (2017) 7
SCC 668

3.
P.
Chidambaram
Vs
Directorate
of
Enforcement: (2019) 9 SCC 24 (Followed)

4. St. of Karnataka Vs Shivanna: (2014) 8 SCC
913, (Paras 6, 10, 10.1 to 10.05)

5. A Vs St. of U.P.: (2020) 10 SCC 505, (Paras 2
to 5, 21)
6. Pushpa Devi M. Jatia Vs M.L. Wadhawan:
(1987) 3 SCC 367, (Para 19)

7. Rohit Bishnoi Vs St. of Rajasthan & anr.:
(2023) 18 SCC 753

8. Sushil Singh Vs St. of U.P. in SLP No.14837 of
2024, (Para 2)

9. Banwari Lal Kanchhal Vs St. of U.P.: 2023 SCC
OnLine All 2510, (Paras 85, 86)
(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Shri Ajai Kumar Shukla, the
learned counsel for the applicant, Shri
Anurag Verma, the learned A.G.A.-I for
the State, Shri Bhuwan Raj, the learned
counsel for the informant and perused the
records.

2. The instant application has been
filed seeking release of the applicant on
bail in Case Crime No.317 of 2024 under
Sections 109(1), 324(4), 351(3), 103(1),
61(2) of Bhartiya Nyaya Sanhita (which
will hereinafter be referred to as 'the
B.N.S.') registered at Police Station-
Lalganj, District- Pratapgarh.

3. The learned Counsel for the
applicant submitted that a co-accused
person Sachin Mishra @ Adarsh Mishra
has been granted bail by means of an order
dated 09.04.2025 passed by this Court in
Crl. Misc. Bail Application No.2963 of
2025 and, therefore, the applicant is also
entitled to be released on bail on the ground
of parity.

4. Sri. Bhuwan Raj, the learned
Counsel for the informant has raised a
preliminary
objection
against
maintainability of the bail application on
the ground that copies of some extracts of
the case diary have been annexed with the
bail application although the investigation
5 All. Vipin Tiwari Vs. State of U.P.
975
is yet not completed and the prosecution
papers have not been filed in the Court. He
has stated that parts of case diary having
been accessed to by the applicant indicates
that he is capable of influencing the
investigation and the Investigation Officer
is trying to protect the accused persons.

5. The statutory provision relevant
in this regard is contained in Section 192
Bhartiya
Nagrik
Suraksha
Sanhita
(hereinafter referred to as 'BNSS'), which
provides as follows: -

 "192. Diary of proceedings in
investigation.-(1) Every police officer
making an investigation under this Chapter
shall day by day enter his proceedings in
the investigation in a diary, setting forth
the time at which the information reached
him, the time at which he began and closed
his investigation, the place or places visited
by
him,
and
a
statement
of
the
circumstances ascertained through his
investigation.

 (2) The statements of witnesses
recorded
during
the
course
of
investigation under Section 180 shall be
inserted in the case diary.

 (3) The diary referred to in subsection (1) shall be a volume and duly
paginated.

 (4) Any Criminal Court may send
for the police diaries of a case under
inquiry or trial in such Court, and may use
such diaries, not as evidence in the case,
but to aid it in such inquiry or trial.

 (5) Neither the accused nor his
agents shall be entitled to call for such
diaries, nor shall he or they be entitled to
see them merely because they are referred
to by the Court; but, if they are used by the
police officer who made them to refresh
his memory, or if the Court uses them for
the purpose of contradicting such police
officer, the provisions of Section 148 or
Section 164, as the case may be, of
the Bharatiya Sakshya Adhiniyam, 2023,
shall apply."
 (Emphasis added)

6. However, Section 230 of the
BNSS provides as follows: -

 "230. Supply to accused of copy
of police report and other documents.-In
any case where the proceeding has been
instituted on a police report, the Magistrate
shall without delay, and in no case beyond
fourteen days from the date of production
or appearance of the accused, furnish to
the accused and the victim (if represented
by an advocate) free of cost, a copy of each
of the following:-

 (i) the police report;
 (ii) the first information report
recorded under Section 173;

 (iii) the statements recorded
under sub-section (3) of Section 180 of all
persons whom the prosecution proposes to
examine
as
its
witnesses,
excluding
therefrom any part in regard to which a
request for such exclusion has been made
by the police officer under sub-section (7)
of Section 193;

 (iv)
the
confessions
and
statements, if any, recorded under Section
183;

 (v) any other document or
relevant extract thereof forwarded to the
Magistrate with the police report under
sub-section (6) of Section 193:
976 INDIAN LAW REPORTS ALLAHABAD SERIES
 Provided that the Magistrate
may, after perusing any such part of a
statement as is referred to in clause (iii)
and considering the reasons given by the
police officer for the request, direct that a
copy of that part of the statement or of such
portion thereof as the Magistrate thinks
proper, shall be furnished to the accused:

 Provided further that if the
Magistrate is satisfied that any such
document is voluminous, he shall, instead
of furnishing the accused and the victim (if
represented by an advocate) with a copy
thereof, may furnish the copies through
electronic means or direct that he will only
be allowed to inspect it either personally or
through an advocate in Court:
 Provided also that supply of
documents in electronic form shall be
considered as duly furnished."
 (Emphasis added)

7. A bare reading of the provisions
contained in Sections 192 and 230 BNSS
indicate that although Section 192 BNSS
provides that the accused or his agent shall
not be entitled to call for the case diary or
to see the same even if it is referred to by
the Court, which stage would come only
after commencement of the trial, Section
230 BNSS provides that upon appearance
of the accused, the Magistrate shall furnish
to the accused copies of the police report,
the statements recorded under sub-section
(3) of Section 180 of all persons whom the
prosecution proposes to examine as its
witnesses, the confessions and statements,
if any, recorded under Section 183 and any
other document or relevant extract thereof
forwarded to the Magistrate with the police
report under sub-section (6) of Section 193.

8. The aforesaid provisions of
BNSS contained in Sections 192 and 230
BNSS found place in Sections 172 and 207
Cr.P.C. respectively.Thus there was an
apparent
conflict
in
the
provisions
contained in Section 172(3) and Section
207 of Cr.P.C., which conflict continues to
remain in the provisions contained in
Section 192 and 230 of BNSS regarding
copies of the prosecution papers being
provided to the accused. When there is a
conflict between two provisions contained
in a Statute, the one beneficial to the
accused should be given precedence, more
so when it is in consonance with the
principles of natural justice. It is a basic
principle of natural justice that no person
should be condemned without giving him
an adequate opportunity of hearing, which
would including providing him copies of
the material against him. Therefore, the
provisions contained in Section 230 BNSS
are in consonance with the principles of
natural justice and in case of a conflict with
Section
192
BNSS,
the
provisions
contained in Section 230 would prevail.

9. In Sidharth v. State of Bihar:
(2005) 12 SCC 545, the Hon'ble Supreme
Court referred to Section 172(3) Cr.P.C.
and held that: -

 "27. ...It is specifically provided
in sub-clause (3) of Section 172 that neither
the accused nor his agents shall be entitled
to call for such diaries nor shall he or they
be entitled to see them merely because they
are referred to by the court, but if they are
used by the police officer who made them
to refresh his memory, or if the court uses
them for the purpose of contradicting such
police officer, the provisions of Section 161
CrPC or the provisions of Section 145 of
the Evidence Act shall be complied with.
The court is empowered to call for such
diaries not to use it as evidence but to use it
as aid to find out anything that happened
5 All. Vipin Tiwari Vs. State of U.P.
977
during the investigation of the crime. These
provisions have been incorporated in the
Code of Criminal Procedure to achieve
certain specific objectives. The police
officer who is conducting the investigation
may come across a series of information
which cannot be divulged to the accused.
He is bound to record such facts in the case
diary. But if the entire case diary is made
available to the accused, it may cause
serious prejudice to others and even affect
the safety and security of those who may
have given statements to the police. The
confidentiality is always kept in the matter
of criminal investigation and it is not
desirable to make available the entire case
diary to the accused. In the instant case, we
have noticed that the entire case diary was
given to the accused and the investigating
officer was extensively cross-examined on
many facts which were not very much
relevant for the purpose of the case. The
learned Sessions Judge should have been
careful in seeing that the trial of the case
was conducted in accordance with the
provisions of CrPC."

10. In Balakram v. State of
Uttarakhand: (2017) 7 SCC 668, the
Hon'ble Supreme Court held that neither
the accused nor his agent is entitled to call
for such case diary and also are not entitled
to see them during the course of inquiry or
trial. The judgment in the case of Balakram
(Supra) was followed in P. Chidambaram
v. Directorate of Enforcement: (2019) 9
SCC 24. However, none of the aforesaid
judgments in the cases of Sidharth,
Balakram and P. Chidambaram (Supra)
takes into consideration the statutory
mandate contained in Section 207 Cr.P.C.
or Section 230 BNSS.

11. We must also take note of the
following directions issued by the Hon'ble
Supreme Court in State of Karnataka v.
Shivanna: (2014) 8 SCC 913: -

 "6. Considering the consistent
recurrence of the heinous crime of rape
and gang rape all over the country
including the metropolitan cities, we are of
the view that it is high time such measures
of reform in CrPC be introduced after
deliberation and debate by the legal
fraternity as also all concerned.

 * * *

 10. On considering the same, we
have accepted the suggestion offered by the
learned counsel who appeared before us
and hence exercising powers under Article
142 of the Constitution, we are pleased to
issue interim directions in the form of
mandamus to all the Police Stations-inCharge in the entire country to follow the
directions of this Court which are as
follows:

 10.1. Upon receipt of information
relating to the commission of offence of
rape, the investigating officer shall make
immediate steps to take the victim to any
Metropolitan/preferably
Judicial
Magistrate for the purpose of recording her
statement under Section 164 CrPC. A copy
of the statement under Section 164 CrPC
should be handed over to the investigating
officer
immediately
with
a
specific
direction
that
the
contents
of
such
statement under Section 164 CrPC should
not be disclosed to any person till chargesheet/report under Section 173 CrPC is
filed.

 10.2. The
investigating
officer
shall as far as possible take the victim to
the nearest Lady Metropolitan/preferably
Lady Judicial Magistrate.
978 INDIAN LAW REPORTS ALLAHABAD SERIES
 10.3. The
investigating
officer
shall record specifically the date and the
time at which he learnt about the
commission of the offence of rape and the
date and time at which he took the victim to
the Metropolitan/preferably Lady Judicial
Magistrate as aforesaid.

 10.4. If
there
is
any
delay
exceeding 24 hours in taking the victim to
the Magistrate, the investigating officer
should record the reasons for the same in
the case diary and hand over a copy of the
same to the Magistrate.

 10.5. Medical examination of the
victim: Section 164-A CrPC inserted by Act
25 of 2005 in CrPC imposes an obligation
on the part of investigating officer to get
the
victim
of
the
rape
immediately
medically examined. A copy of the report of
such medical examination should be
immediately handed over to the Magistrate
who records the statement of the victim
under Section 164 CrPC."

12. Thus, although in Shivanna
(Supra)
the
Hon'ble
Supreme
Court
directed that a copy of the statement under
Section 164 CrPC should be handed over to
the investigating officer immediately with a
specific direction that the contents of such
statement under Section 164 CrPC should
not be disclosed to any person till chargesheet/report under Section 173 Cr.P.C. is
filed, this direction was limited to the cases
of rape and gang-rape. The present case
does
not
involve
the
allegation
of
commission of rape and gang-rape.

13. The directions issued in A v.
State of U.P.: (2020) 10 SCC 505, is also
relevant to be taken into consideration, but
before referring to the direction, it is to be
noted that the same were issued in the
factual background mentioned in the
following paragraphs of the judgment: -

 "2. On 25-8-2019, the father of
the appellant lodged a complaint with
Police
Station
Kotwali,
District
Shahjahanpur that he had seen a video of
the appellant on her Facebook account
alleging that Respondent 2 and some others
had sexually exploited the appellant and
many other girls; that the appellant was not
contactable; that he was apprehending
danger to the appellant; and that prompt
action be taken in the matter.

 3. Thereafter, pursuant to a
complaint filed by one Mr Om Singh,
Advocate, to the effect that he looked after
the legal work of the Ashram run by
Respondent 2; and that an unknown person
had threatened that unless Rupees five
crores were paid, the reputation of
Respondent 2 in the society would be
harmed.
The
said
complaint
was
immediately registered as FIR No. 442 of
2019.

 4. The complaint filed by the
father of the appellant was registered two
days later as FIR No. 445 of 2019 in
respect of offences of abduction and sexual
harassment under Sections 506 and 364 of
the Penal Code, 1860 (for short "IPC").

 5. The Facebook video of the
appellant having gone viral, letters were
written to this Court by some advocates
whereafter Suo Motu Writ Petition (Crl.)
No. 2 of 2019 was registered in this Court.
On 30-8-2019 it was reported to this Court
that the appellant was found in District
Dausa of the State of Rajasthan. On 30-82019, this Court recorded the statement of
the appellant that she did not intend to go
back to Uttar Pradesh but would meet her
5 All. Vipin Tiwari Vs. State of U.P.
979
parents in Delhi. Certain directions were
therefore passed."

 In the aforesaid peculiar factual
background, the Hon'ble Supreme Court
referred to the aforesaid directions issued in
Shivanna (Supra) and held that: -

 "21. The right to receive a copy
of such statement will arise only after
cognizance is taken and at the stage
contemplated by Sections 207 and 208
CrPC and not before."

14.
The
aforesaid
directions
should be read in light of the peculiar
factual background in which those were
issued, whereas the present case does not
involve facts in any manner similar to the
cases in which the aforesaid directions
were issued.

15. We should not lose sight of the fact
that the State's endeavor is to ensure justice and
not to ensure conviction of all the accused
persons. The State acts through its officers and
officials and, therefore, the endeavor of the
officers and officials of the State should also be
the same, i.e. to ensure justice and not to ensure
conviction of all the accused persons.

16. It is a basic principle of natural
justice that no person should be condemned
without giving him an adequate opportunity of
hearing, which would include providing copies
of the material against him. Condemnation does
not only mean conviction and sentence. An
innocent person being arrested and made to
languish in jail during trial is also condemned as
his fundamental right of personal liberty is
adversely affected, besides the loss of his
reputation and fame.

17. Section 230 BNSS provides
that upon appearance of the accused, the
Magistrate shall furnish to the accused
copies of the police report, copies of the
statements recorded under Section 180(3),
the confessions and statements recorded
under Section 183 and any other document
forwarded to the Magistrate with the police
report under Section 193(6). An accused
person intending to avail his remedy of
anticipatory bail has to appear before the
Court and he would be required to present
the complete facts before the Court, which
might include the material collected during
investigation, to which the accused would
be entitled under Section 230 BNSS.

18. If an innocent person is made
an accused, he is taken into custody and he
is not provided the prosecution papers till
the investigation concludes, a charge-sheet
is filed in the Court and the Court takes
cognizance of the offence, he would remain
in jail till that period and he will not even
be able to present a properly prepared bail
application containing all the relevant facts
and material which needs to be considered
by the Court for deciding his bail plea.

19. It would be appropriate to have
a look at the provision contained in
Regulation 107 of the U. P Police
Regulations, which provides as follows: -

 "107. The Investigating Officer
should not consider himself a mere clerk
recording evidence. It is his duty to observe
and infer. In every case he will use his
special knowledge of the scene of the crime
and
the
general
circumstances
in
examining the evidence of witnesses and in
every case where the culprit is unknown he
will determine the direction in which he
will search for him. He should study the
modus operandi of local criminals, which
are known to the local police, with a view
to recognising the work of their hands and
980 INDIAN LAW REPORTS ALLAHABAD SERIES
be on guard against believing the doubts
of witnesses and complainant which are
contrary to the obvious inferences which
may flow from the facts. He should
remember that it is his duty to find out the
truth and not merely to secure a
conviction. In them, he should not form
any view of the facts for or against any
person and though he should not go out of
the way to look for evidence for the
defence in a case in which he has
satisfactory reasons to believe that the
accused is guilty, he should always give an
opportunity to the accused to produce
evidence before him and, if produced,
should consider such evidence carefully.
In cases of burglary, the investigation
should be conducted in accordance with
the special orders given on the subject."

 (Emphasis added)

20. In case an Investigating Officer
provides copies of the material collected
during investigation, to which the accused
is entitled under Section 230 BNSS, for
being presented before the Court so as to
enable the Court to decide the bail plea
after taking into consideration all the
relevant facts and circumstances of the
case,
it
should not
result
in
nonconsideration of the bail application on its
merits.

21. It is also to be noted that this
Court seldom comes across a case where
photocopiesfrom the extract of case diary
are not annexed with the bail application.
Annexing copies of extracts of case diary
has become a norm and not annexing the
same
is
an
exception.
When
the
photocopies are being freely provided to
the persons doing Pairvi of criminal cases,
copies of extracts of case diary having been
annexed with the bail application would not
make out a ground for rejection of the bail
application in limine without its merits
being examined by the Court. Moreover, a
person who is in custody, cannot be blamed
for extracts of case diary procured by some
person for his benefit, as he is not directly
involved in this process and, therefore, he
cannot be made to suffer by rejection of his
bail
application
on
this
preliminary
objection.

22. In Pushpa Devi M. Jatia v.
M.L. Wadhawan: (1987) 3 SCC 367, the
Hon'ble Supreme Court held that: -

 "19. ...There is a long line of
authority to support the opinion that the
court is not concerned with how evidence is
obtained. The rule is however subject to an
exception. The judge has a discretion to
exclude evidence procured, after the
commencement of alleged offence, which
although technically admissible appears to
the judge to be unfair. The classical
example of such a case is where the
prejudicial effect of such evidence would be
out of proportion to its evidential value.
Coming
nearer
home,
this
Court
in MagrajPatodia v. R.K. Birla [(1970) 2
SCC 888 : AIR 1971 SC 1295 : (1971) 2
SCR 118] held that the fact that a
document which was procured by improper
or even illegal means could not bar its
admissibility provided its relevance and
genuineness were proved...."

23. For the foregoing reasons, I
find no force in the preliminary objection
raised by the learned Counsel for the
informant and the same is rejected. Now I
proceed to examine the merits of the
application.

24. Sri. Bhuwan Raj, the learned
counsel for the informant has vehemently
5 All. Vipin Tiwari Vs. State of U.P.
981
opposed the bail application and he has
submitted that the incident took place on
05.08.2024, the applicant is said to be the
prime accused, the investigation is still
pending and the vehicle involved in
commission of the incident, has not been
recovered till date as the investigation is
being influenced by the accused persons.
He has submitted that in case the applicant
is released on bail, there is every possibility
of the investigation being influenced by
him.

25. The learned counsel for the
informant has submitted that the accused
persons had deliberately hit the bullet
motorcycle which the deceased was riding
to eliminate him and to give it a semblance
of an accident because of an old property
dispute between the parties. He has relied
upon a decision of the Hon'ble Supreme
Court in the case of Rohit Bishnoi v. State
of Rajasthan &Anr.: (2023) 18 SCC 753,
wherein the Hon'ble Supreme Court has
reiterated the points to be taken into
consideration
while
deciding
a
bail
application in the following words:-

 "This Court has, on several
occasions discussed the factors to be
considered by a court while deciding a bail
application. The primary considerations
which must be placed at balance while
deciding the grant of bail are: (1) the
seriousness
of
the
offence;
(ii)
the
likelihood of the accused fleeing from
justice; (iii) the impact of release of the
accused on the prosecution witnesses; (iv)
likelihood of the accused tampering with
evidence. While such a list is not
exhaustive, it may be stated that if a court
takes into account such factors in deciding
a bail application, it could be concluded
that the decision has resulted from a
judicious exercise of its discretion, vide
Gudikanti Narasimhulu v. High Court of
A.P.; Prahlad Singh Bhati v. State (NCT of
Delhi) and Anil Kumar Yadav v. State
(NCT of Delhi)"

26. He has also relied upon the
following portion of the order dated
17.01.2025 passed by the Hon'ble Supreme
Court in the case of Sushil Singh v. State
of U.P. in SLP No.14837 of 2024, which
reads as follows:-

 "2. The High Court of Judicature
at
Allahabad
while
considering
the
application for bail of the accused
respondent
no.2
Indrabhawan
Singh
appears to have conducted a mini trial and
made observations which have the potential
of deflecting justice when the trial is in
progress. Having regard to the nature of
allegations levelled in relation to the crime
of murder of the brother of Sushil Singh
(appellant), the role attributed to the
accused respondent no.2, the circumstance
of recovery of a pistol from his residence in
terms of section 27 of the Evidence Act,
1872, the stage of the proceedings and the
antecedents of the respondent no.2, we are
of the considered opinion that the High
Court was not justified in enlarging the
respondent no.2 on bail primarily because
of the 8 hours and 30 minutes delay in
registration of the FIR and also relying on
the statement of the gram pradhan without
giving due credence to the statements of the
alleged eye-witnesses."

27. The aforesaid order has been
passed setting aside a particular order
passed by this Court granting bail to an
accused person on the primary ground of
delay of 8 hours and 30 minutes in
registration of the F.I.R. and without giving
due credence to the statements of the
alleged eye-witnesses. This order does not
982 INDIAN LAW REPORTS ALLAHABAD SERIES
lay down any general principles of law
which may be of universal application. It is
a settled principle of law of precedents that
only the ratio of law laid down by a
judgment is binding. The observations
made in the light of the peculiar facts and
circumstances of the case do not have
universal
application
and
those
observations ought not to be cited as a
precedent.

28. The F.I.R. in the present case
was lodged on 06.08.2024 at 23:26 hours
against the applicant and his brother
Ambikesh Tiwari, stating that Harikesh
Kumar Tiwari - elder brother of the
informant's husband and his cousin Manoj
Shukla, were going on a bullet motorcycle
to Lalganj Tehsil in connection with a bail
matter at 10:00 a.m. on 05.08.2024. As
soon as they reached near Raipur petrol
pump at about 10:30 a.m., the applicant
came there driving a white Bolero, the
registration number whereof is not known,
and he hit the bullet motorcycle from the
left side due to which Harikesh Tiwari got
seriously injured and Manoj Kumar sitting
on the pillion seat also suffered injuries.
The Bolero ran away. The FIR states that
for the past few days the accused persons
were threatening to kill the victims because
of some old animosity.

29. Harikesh Tiwari died during
treatment and his postmortem examination
was
conducted
on
19.08.2024.
The
postmortem examination report mentions a
contusion of size 12 cm X 6 cm on right
side of head above right ear, a contusion of
size 6 cm X 4 cm on back of head, an
abraded contusion of size 6 cm X 3 cm on
top of right shoulder and an abraded
contusion on medial aspect of right foot.
The cause of death has been opined to be
coma due to ante-mortem head injuries.
30. In the statement of the
informant recorded under Section 180
B.N.S.S., she stated that her husband is in
jail in connection with some matter. There
is a property dispute between family of the
informant and the accused persons. Fatherin-law of the informant and father of the
accused persons are real brothers. The
accused persons had entered into an
altercation with Harikesh Tiwari at the time
of sowing paddy and police had challaned
Vipin Tiwari and Harikesh Tiwari (the
deceased) and the deceased was going for
bail in that matter on the date of the
incident alongwith Manoj Kumar Shukla
and Sunil Kumar Shukla. As soon as they
had reached near Raipur petrol pump, a
white Bolero of unknown registration
number hit the bullet motorcycle of
Harikesh Tiwari due to which they fell
down and both of them suffered injuries.
Harikesh Tiwari was taken to C.H.C.,
Lalganj from where he was sent to the
District Hospital, Pratapgarh. He was then
referred to Allahabad, but he was being
treated in a private hospital at Lucknow.
Manoj Shukla and Sunil Kumar Shukla had
told that the Bolero was following them
from Basantganj but as curtains were
installed in it, the persons sitting in the
vehicle could not be seen.

31. The applicant's involvement in
another criminal case under Section 307,
323, 506 IPC has been disclosed in para-19
of the bail application in which he has
already been granted bail.

32. It has also been stated in the
affidavit filed in support of the bail
application that on the date of the incident
i.e. on 05.08.2024, the applicant was
present in this Court for opposing the bail
application
of
Kamlesh
Tiwari.
His
photograph was taken in the photo affidavit
5 All. Vipin Tiwari Vs. State of U.P.
983
Centre of this Court at about 11:20 a.m.
and a copy of the same has been annexed as
Annexure No.8 to the bail application.

33. A copy of FIR No.201 of 2021
has been annexed with the bail application
which was lodged by the applicant against
three persons-(i) Kamlesh Tiwari (husband
of the present informant Meera Tiwari) (ii)
Adarsh Tiwari S/o Kamlesh Tiwari and (iii)
Devendra Tiwari father of Kamlesh Tiwari,
stating that due to a dispute regarding
plucking mangoes by the informant's niece
aged 16 years, the accused persons had
fired at her causing serious injuries to her.
The informant's husband is in jail in
connection with that case. However, the
informant claims that the accused persons
had entered into an altercation with
Harikesh Tiwari at the time of sowing
paddy and police had challaned the
applicant and Harikesh Tiwari and the
deceased was going for bail in that matter
on the date of the incident.

34. During investigation it came to
light that the third person sitting in Bolero
was Sachin Mishra @ Adarsh Mishra and
he has been granted bail by means of an
order dated 09.04.2025 passed by this
Court in Crl. Misc. Bail Application
No.2963 of 2025.

35. The learned AGA-I has stated
that the case diary does not make a mention
of any injury suffered by Manoj Kumar
Shukla. The failure to record the findings
of medico-legal examination report of
Manoj Kumar Shukla prima facie indicates
he had not suffered any injury.

36. The Investigating Officer has
recorded that from a perusal of call detail
records of Vipin Tiwari (the applicant), his
aunt Saroj Tiwari and the applicant's friend
Sachin Mishra, it appears that the mobile
phone locations of Vipin Tiwari and Saroj
Tiwari have been found at the same place
since morning of 05.08.2024 till after the
incident. A call commenced between
mobile phone of Vipin Tiwari and Saroj
Tiwari at 06:00 a.m. and it continued till
07:00 a.m., during which the location of the
applicant's
mobile
phone
was
from
Raniganj, Kaithola to Salon via Raibareli
and Lucknow on the same tower. The
movement of mobile phone between
Raniganj, Kaithola to Salon via Raibareli
and
Lucknow,
indicates
that
the
observation recorded by the Investigating
Officer that its location has been found
since morning of 05.08.2024 till after the
incident at the same tower, is incorrect.

37. The observations recorded in
the case diary after perusal of the call detail
records of the applicant indicate that the
applicant had made a phone call at
08:59:48 hours while his location was
S.G.P.G.I., Lucknow. He has made a phone
call at 09:30:46 while his location was at
Vineet Khand, Gomti Nagar Lucknow and
another call was made at 10:06:32 hours
while his location was at New High Court
Compound, Gomti Nagar, Lucknow. Yet
another call was made at 10:40:23 hours
while his location was still at the High
Court
Compound
at
Gomti
Nagar,
Lucknow. Thereafter, at 11:31:49 hours,
the applicant's mobile phone location was
at
Surendra
Nagar,
Faizabad
Road,
Lucknow, which is a place near this
Court's campus.

38. The applicant's location in the
campus of this High Court is established
from his call detail records since 10:06:32
hours on 05.08.2024 till 10:40:23 hours
while the accident took place at about
10:30 hours on 05.08.2024 in District
984 INDIAN LAW REPORTS ALLAHABAD SERIES
Pratapgarh, which about 175 Kms. Away
from the premises of this High Court at
Lucknow.

39. The applicant's presence in this
Court at 11:20 a.m. on 05.08.2024 is
established by his photograph taken in the
photo affidavit Centre of this Court, a copy
whereof has been annexed with the bail
application.

40. The learned AGA-I has also
submitted that it is recorded in the case
diary that the Bolero Car and the Bullet
Motorcycle were seen in the footage of
CCTV several cameras. However, in none
of the CCTV footages the registration
number of the Bolero car or the persons
sitting in it could be seen.

41. The learned A.G.A-I has
pointed out that the investigation has been
transferred to the Inspector (Crime) on
05.02.2025.

42. The learned Counsel for the
informant has blamed the Investigating
Officer for having failed to recover the
offending white Bolero and he has
contended that it has been done under
influence
of
the
applicant
who
is
languishing in jail. The Court finds no
force in this submission because the failure
to recover a Bolero car by the mere
description that it was of white colour and
it had curtains installed in it and without
disclosure of its registration number or any
other particular sufficient to identify it,
does not prima facie appear to be
deliberate.

43. When we examine the facts of
the case in light of the law laid down by the
Supreme Court in Rohit Bishnoi (Supra),
the allegation in the present case is that a
Bullet Motorcycle was hit by a Bolero car
and as per the statement of the informant
and the observations made by examination
of numerous CCTV footages, neither the
registration number of the Bolero nor its
occupants could be seen. The informant
claims that the accused persons killed the
deceased and they tried to give it a
semblance of an accident. Even as per the
informant, the incident has a semblance of
an accident. The applicant and the accused
persons are descendants of the same
ancestor and they are fighting for the same
piece of land left by the applicant's
grandfather. There appears to be no serious
likelihood of the applicant fleeing from the
process of law. It has been stated in the bail
application that the informant's husband is
accused of committing an offence under
section 307 I.P.C. in which applicant's
niece had suffered a gun-shot injury on her
shoulder from and he is in jail in
connection with that case. Therefore, prima
facie it appears that the informant's family
members
also
do
not
have
clean
antecedents.

44.
Without
making
any
observations which may affect the outcome
of trial, I am of the view that the facts that
the F.I.R. was lodged 37 hours after the
incident; there is an old animosity between
the parties; the registration number of the
Bolero which had hit the motorcycle has
not been identified even after examination
of footages of numerous CCTV cameras;
the applicant has not been connected with
that Bolero vehicle and the applicant's call
detail records and his photo taken in the
photo affidavit centre of this Court indicate
that at the time of the incident he was
present in the premises of this High Court
which is at a distance of about 175
Kilometers from the place of the incident
and that another accused person has already
5 All. Vipin Tiwari Vs. State of U.P.
985
been granted bail, I am of the view that the
applicant is also entitled to be released on
bail.

45.
Accordingly,
this
bail
application stands allowed.

46. Let the applicant- Vipin
Tiwari be released on bail in the
aforementioned case on furnishing a
personal bond and two sureties each in the
like
amount
to
the
satisfaction
of
Magistrate/Court concerned, subject to
following conditions:-

 (i) the applicant shall not tamper
with the prosecution evidence;

 (ii)
the
applicant
shall
not
pressurize the prosecution witnesses;

 (iii) the applicant shall appear on
each and every date fixed by the trial Court.

47.