Vijay Kumar Ojha (In Jail) vs State of U.P.

Ravindra Singh, J.—This application has been filed by applicant Vijai Kumar Ojha with a prayer that he may be released on bail in case crime No. 503 of 2006, under Sections 302 I.P.C., P.S. Kasia, District Kushinagar.

The prosecution story, in brief, is that the F.I.R. has been lodged by Sri Sudama Yadav at P.S. Kasia, Kushinagar on 6.6.2006 at 4.10 a.m. in respect of the incident which had occurred in the night of 5/6.6.2006 at about 12.30 O'' clock at the house of the applicant. The distance of the police station was about 9 km from the alleged place of occurrence. The F.I.R. was lodged against the applicant and co-accused Sanjay Kumar Ojha and their other family members, alleging therein that the deceased Manoj Gupta was carrying a business of P.CO. for the last many years, in the same mohalla where the applicant along with his family members was living in a rental house. The applicant''s daughter Km. Pratibha was frequently visiting to the P.CO. of the deceased and having long conversation with the deceased, it was known to the applicant so he has extended the threats to the deceased also. On 5.6.2006 at about 9.15 p.m. Km. Pratibha the daughter of the applicant gave a telephonic call, which was received by the first informant and at the saying of Km. Pratibha the deceased has talked with her, thereafter, it was told by the deceased that he was going to Shivpur (the place of occurrence) and would return in the night and the first informant was asked to go from the shop after closing the same. The deceased along with one Pramod Singh went to Shivpur on a motorcycle, at about 12.30 O'' clock in the night the witness Pramod Singh heard the shrieks of the deceased from the house of Km. Pratibha, he saw that the deceased was murdered and his dead body was dragging out by the applicant, his brother co-accused Sanjay Kumar Ojha and other family members were dragging out his dead body from their house. Thereafter, its information was given by Pramod Singh to the first informant and the family members of the deceased. The dead body of the deceased was lying at door of the applicant''s house. The first informant went to police station and lodged the F.I.R. According to the post mortem examination report the deceased has received 11 injuries, which are lacerated wounds, incised wounds and contusions. According to the inquest report also the dead body of the deceased was found in front of the applicant''s, where the proceedings of the inquest were completed on 6.6.2006 since 7.00 a.m. to 9.00 a.m. The applicant had applied for bail before the Sessions Judge, Kushinagar, the same were rejected on 1.7.2006 and 11.7.2006.

Heard Sri Viresh Mishra, Senior Advocate assisted by Sri Amit Mishra Learned Counsel for the applicant, learned A.G.A. for the state of U.P. and Sri Pramod Kumar Gupta Learned Counsel for the complainant.

It is contended by the Learned Counsel for the applicant that:

(i) The applicant is a practicing lawyer of judgeship of District Kushinagar and he is practicing since 1991. He is father of four children including 3 daughters and one son.

(ii) The first informant is not eyewitness. He has lodged the F.I.R. only on the basis of information given by the witness Pramod Singh. The presence of witness Pramod Singh at the place of occurrence is highly doubtful. He is a highly interested witness, because he is friend of the deceased. The alleged occurrence had taken place in the dark hours of night. There was no source of light to witness the alleged incident. The applicant himself was not present at his house, at the time of the allege occurrence because he had gone to Kasba Dudhahi to attend a Tilak ceremony of the brother-in-law of co-accused Sanjay Kumar Ojha, which was at a distance of 45 km. from the village of the applicant. The applicant and his brother Sanjay Kumar Ojha returned to his village at the night at about 2.00 a.m. i.e. after commission of the alleged offence.

(iii) The F.I.R. of this case is ante timed. It is also surprising that the F.I.R. was lodged at P.S. Kasia whereas other nearest police stations were easily available to the first informant and Pramod Singh to lodge the F.I.R. The village of the witness Pramod Singh is at a distance of about 20 kms where he was working as mechanic. He was not known to the applicant and he has never visited the village of the applicant prior to the alleged occurrence.

(iv) The allegation that there had been telephonic talk between the deceased and Km. Pratibha, but the prosecution has not given the details of such telephonic talk.

(v) The deceased was resident of Padrauna, which was at a distance of 20-22 kms from the alleged place of occurrence. The deceased was a man of bad character. He was murdered by some unknown villagers but after recovery of his dead body the present story was cooked up.

(vi) The presence of the deceased inside the house of the applicant in the night hours without having any relationship with the applicant shows that the deceased was seen in objectionable condition with Km. Pratibha, thereafter, he was beaten-by the villagers. Km. Pratibha is a minor girl, according to High School certificate her date of birth is 10.5.1990 and she is an unmarried girl. The deceased was married person aged about 35 years. He was having his wife and 3 children. In such condition there was no occasion for the deceased to have love affairs with Km. Pratibha. The deceased had developed illicit relations with Km. Pratibha, due to some unknown reasons.

(vii) According to broad features of the case the presence of the deceased at the bed of Km. Pratibha in side the house of the applicant in the night hours and to have illicit relation with unmarried daughter of the applicant and under a natural reaction the injuries were caused to the deceased, is a case of grave and sudden provocation.

(viii) There is no independent witness of the locality to support the prosecution story. The applicant is a man of peace loving. He is having no criminal antecedents. In case he is released on bail he will not misuse the same, therefore, he may be released on bail.

In reply of the above contention the learned A.G.A. and the Learned Counsel for the complainant submit that:

(i) In the present case the F.I.R. has been promptly lodged in the same night at 4.10 a.m. in respect of the incident which had occurred at about 12.30 O'' clock in the night of 5/6.6.2006 by covering a distance of 9 kms from the alleged place of occurrence. The F.I.R. has been lodged by the first informant on the basis of information given by Pramod Singh the alleged eyewitness. There is no delay in lodging the F.I.R.

(ii) On the telephonic message given by Km. Pratibha the daughter of the applicant the deceased went to village Shivpur at the house of the applicant where he has been murdered by the applicant and other co-accused persons. It was a pre-planed murder and the alleged occurrence was witnesses by Pramod Singh and the dead body of the deceased was lying in front of the house of the applicant and the deceased has received 11 injuries, which were either lacerated wounds, incised wounds or contusions. During investigation the statements of the applicant, co-accused Sanjai Kumar Ojha and their other family members were recorded. Smt Kamla Devi the mother of the applicant has stated that at about 12.30 a.m. the applicant and his brother Sanjai Kumar Ojha came their house. The door was open by her, but inside the room they saw the deceased on the bed of Km. Pratibha and in provocation the deceased was beaten by them, who died on the spot. It has been corroborated by Smt Nimmi Ojha the wife of the applicant also and the prosecution story is fully supported by printout of the mobile phones, the witness Pramod Singh is a natural witness and during investigation Km Pratibha could not be interrogated by the I.O. Km Pratibha is matured girl even she was love affairs with the deceased and she has written several love letters to the deceased, due to this reasons the deceased has been murdered by the applicant and others.

(iii) The applicant is very influential person. He is an Advocate. In case he is released on bail he will not allow any witness to depose evidence against him and the fair trial may not be done. In the order dated 11.7.2006 passed by the learned Sessions Judge, Kushinagar on the second bail application of the applicant, the conduct of a group of Lawyers has been explained, who were pressurizing him to grant the bail to the applicant, on refusal to give any such commitment the Lawyers disturbed the working of all the courts and went on lightening strike and after sensing that the bail shall be rejected the second bail application was not pressed.

From the perusal of the order dated 11.7.2006, it appears that the second bail of the applicant has also been rejected as not pressed by the learned Sessions Judge, Kushinagar on 11.7.2006, but it has not been disclosed by the Learned Counsel for the applicant in the bail application, it has been disclosed by the Learned Counsel for the complainant in the counter affidavit by annexing the copy of the order dated 11.7.2006 which reveals that the first bail application of the applicant was rejected by the learned Sessions Judge, Kushinagar on 1.7.2006, thereafter, within a span-of 5 days his second bail application was moved on the same grounds before the learned Sessions Judge, and a group of Lawyers went in his chambers and pressurized to allow the second bail application and to make such commitment, but the learned Sessions Judge replied that no commitment could be made for the grant of bail, then the Lawyers persisted and gesticulated belligerently and mounting pressure to grant the bail to the applicant and disturbed the working of the court of the learned Sessions Judge and other courts of the judgeship and went on lightening strike. The order dated 11.7.2006 on the second bail application of the applicant:

11.07.2006:

The accused applicant who is an Advocate has moved this Second Bail Application u/s 302 I.P.C., P.S. Kasia, District- Kushinagar, Case Crime No. 503 of 2006. Earlier the first bail application in which the details of crime has been given is made a pan: of this second bail application in order to avoid delicacy of the facts and reasons for rejection of the first bail on 1.7.2006. When the second bail application was moved a group of Lawyers came in my chambers are pressed to allow this second bail application. Within a span of 5 days this second bail application was moved on the same grounds and reasons on which the first bail application was moved and was rejected. The second bail application is not moved on different grounds or on a change of circumstances warranting for release of the accused on bail, therefore, the second bail application on the same ground is not maintainable.

When the group of Lawyers came and put pressure upon me to grant the second bail to the accused who is an Advocated I told them that no commitment can be made for the grant of bail. This is against the judicial dictum and sanctity of the independence of judiciary. I also tale them that piety and sublimity of the judicial independence shall be destroyed by any sort of commitment or insistence thereof regarding grant of this second bail by me but the counsel persisted and gesticulated belligerently. They were historically insistent and persisted in their unwanted, unsavory and unpleasant demand. Then they committed commotion bringing the peace of the court and the judgeship to a standstill and even disturbed all other courts of the entire judgeship and went on lightening strike. Since then they are going on continuing strike. As they could not have taken the ground of strike on refusal to grant the second bail of the accused on the ground that he is a counsel they have cooked up and taken a fictitious and artificial stand on unsavory and unpleasant basis to on strike. They have even invited the members of the Bar Council to visit this place and take stock of the situation. Perhaps, they are under the impression that the Sessions Judge is under the control of Bar Council.

Since all the grounds for rejection have been given in the first bail application which is a part of this bail application it need not be repeated here. Sensing that after such bedlam the bail shall be rejected they have chosen not to press this second basil application on merit.

Therefore, with the above observation the second bail application is rejected as not pressed.

Sri Viresh Mishra, Senior Advocate has argued well and gave emphasis that the deceased was murdered due to grave and sudden provocation, but a ''fair trial'' is a paramount consideration for releasing a person on bail for which the test to be applied by reference to the following consideration:

(a) the nature of accusation,

(b) the nature of the evidence in support of the accusation,

(c) the severity of the punishment which conviction will entail, and

(d) the character, behavior, means and the standing of the accused.

As observed by the Supreme Court in case of Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh,

The Apex Court has observed in above mentioned case, in its paragraph No. 9, which reads as under:

Thus the legal principle and practice validate the court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to inquire into the antecedents of a man who is applying for bail to find whether he has a bad record-particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.

In view of above discussion the ''act'' done by a group of lawyers in the chambers of the District and Sessions Judge, Kushinagar by mounting a pressure to give assurance of bail and on refusal in a degnified manner, the lawyers disturbed the working of that court and other courts of that judgeship and went on lightening strike, is highly condemnable, because they are part of the judicial system, they have to maintain the dignity of the court and to provide proper assistance to the court in dispensation of the justice but in the present case, the conduct of the lawyer is otherwise where the chances of fair trial are remote and paramount consideration is to have a fair trial, the applicant-is such, influential person who got pressurized the, District and Sessions Judge through the lawyer and obstructed the working of the court, so there is likelihood of the applicant interfering with the witnesseses or otherwise polluting the process of justice, the applicant does not deserve for bail.

Considering the facts and circumstances of the case and submissions made by the Learned Counsel for the applicant and the learned A.G.A. and Learned Counsel for complainant and without expressing any opinion on the merits of the case, the prayer for bail is refused.

Accordingly, the bail application is rejected at this stage.