Uma Shanker Pandey vs State of U.P.

Ravindra Singh, J.—This is the second bail application moved by applicant Uma Shanker Pandey with a prayer that he may be released on bail in Case Crime No. 96 of 2005, u/s 302, I.P.C., P. S. Shankargarh, district Allahabad. Criminal Misc. First Bail Application No. 3585 of 2006 has been rejected by this Court on 4.5.2006 after considering the merit of the case.

Heard Sri Satish Trivedi, senior advocate assisted by Sri S. M. Upadhyay, learned Counsel for the applicant, learned A.G.A. for the State of U.P. and Sri Kamlesh Shukla, learned Counsel for the complainant.

It is contended by learned Counsel for the applicant that applicant is in jail and session trial has not been concluded but some of the witnesses have been examined in the trial. The deceased was a hardened criminal, he was involved in 21 criminal cases. He was having several enemies, some of his family members were also accused in other criminal cases. The deceased was having enmity with the co-accused Ramesh Garg and Rakesh Garg with regard to realize the tehbazari and contract of crushing stones whereas the applicant was not involved in such business. Prior of the alleged occurrence the applicant was falsely implicated in a case u/s 307, I.P.C. by the deceased in which one Amrit Lal had sustained gun shot injuries but in that case applicant was acquitted on 6.12.2006 by learned Additional Sessions Judge, Court No. 13, Allahabad in S.T. No. 880 of 2006. The presence of the first informant at the time of the alleged occurrence is highly doubtful, he was a chance witness. The first informant is witness of the inquest report also which shows that the F.I.R. was not in existence at the time of the preparation of the inquest report. The driver of the tempo who took the deceased to the hospital has filed an affidavit before the trial court stating therein that the deceased was lying alone near Kapari Mod and he had taken him to the police station and thereafter to the hospital where he was declared dead and no family member of the deceased was present there to identify him. The applicant is an ex-army man. He is in jail since 9.9.2005 and the co-accused Rakesh Garg and Onkar Shukla alias Babbu have been released on bail by another Bench of this Court by a common order dated 8.8.2007 in Criminal Misc. Bail Application No. 24918 of 2006 connected with Criminal Bail Application No. 16151 of 2006, therefore, the applicant is also entitled to get the benefit of parity.

In reply of the above contention it is submitted by learned A.G.A. and learned Counsel for the complainant that session trial of the applicant is in progress and all the points on merits have also been considered at the time of the disposal of the first bail application and applicant is having criminal antecedent. The case of the applicant is distinguishable with the case of co-accused Ramesh Garg and Rakesh Garg. The ground on which the co-accused have been released on bail by another Bench of this Court is in respect of the wireless message sent by the police to show that a tempo driver brought the deceased to Police Station Shankargarh and the driver was not acquainted with the injured person and the injured was also not in a position to speak, he had a rifle with him. In fact this ground was not touching the merits of the case, its authenticity can be tested at the stage of the trial when it is proved. In case the applicants released on bail he shall tamper with the evidence freely, therefore, he may not be released on bail.

Considering the facts and circumstances of the case and submission made by learned Counsel for the applicant, learned A.G.A. and learned Counsel for the complainant and after considering the order dated 8.8.2007, passed by another Bench of this Court by which the co-accused Rakesh Garg and Onkar Shukla alias Babbu have been released on bail, the applicant is not entitled to get the benefit of parity because the applicant is having a criminal antecedent and trial is in progress where P. Ws. are being examined. Without expressing any opinion on the merits of the case, the applicant is not entitled for bail, therefore, his bail application is refused.

However, considering the fact that trial is in progress and applicant is in jail since 9.9.2005, it is directed that the proceeding of the session trial shall be expedited without granting unnecessary adjournment to either of the side, if possible on day to day basis.

With the above direction, this application is finally disposed of.

The copy of this order shall be sent to learned Sessions Judge, Allahabad within three days from today for the compliance.