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2022 DIGILAW 1502 (ALL)

Rakesh Kumar v. State of U. P.

2022-09-19

SUBHASH VIDYARTHI

body2022
JUDGMENT : SUBHASH VIDYARTHI, J. 1. Heard Sri Anjani Kumar Rai Advocate, the learned counsel for the applicant, the learned A.G.A. for the State, Sri Pramod Kumar Srivastava Advocate, the learned Counsel for the informant and perused the record. 2. The present bail application has been filed by the applicant with the prayer to enlarge him on bail in Case Crime No. 721 of 2018, under Sections 419, 420, 466, 468, 471 I.P.C. Police Station Saini, District Kaushambi. 3. The aforesaid case has been registered on the basis of an application under Section 156 (3) Cr.P.C. filed on 18-12-2018 by the informant Kuldeep @ Shivam Tiwari against five named accused persons, including the applicant, alleging that the informant's mother Raju Devi D/o Late Shiv Sewak is the genuine legal heir of Late Shiv Sewak. The accused persons have fabricated an unregistered will of Late Shiv Sewak and they have also fabricated copies of Parivar Register and School Leaving Certificate to establish that the applicant's mother was daughter of Surajbali S/o Vishwanath. 4. In paragraph 7 of the affidavit it has been stated that prior to lodging the instant F.I.R. the informant's mother Raju Devi had filed a Complaint Case No. 5041 of 2017 (Smt. Raju Devi vs. Dayasanker and Others), under Sections 419, 420, 467, 468, 471 IPC, P.S. Saini, District Kaushambi in which the applicant has been granted bail by means of an order dated 17-05-2019, copy whereof has been annexed as Annexure No. 4 to the affidavit. 5. The informant Kuldeep lodged another F.I.R. dated 24-10-2019 against the four accused persons, including the applicant, by way of an application under Section 156(3) Cr.P.C. which was registered as Case Crime No. 92 of 2019, under Sections 419, 420, 467, 468, 471 I.P.C. and P.S. Kadadham, District Kaushambi, in which the applicant has been granted bail by means of an order dated 08-09-2020, a copy whereof has been annexed as Annexure No. 6 to the affidavit. 6. The applicant contends that the informant's mother is daughter of one Surajbali, resident of Saurai Alipur Bhadar, District Fatehpur and she is not daughter of Late Shiv Sewak son of Kedar Nath, resident of Saurai Bujurg, Kaushambi. To support this contention, a copy of a registered will dated 23-05-1990 executed by Late Shiv Sewak has been annexed as Annexure no. The applicant contends that the informant's mother is daughter of one Surajbali, resident of Saurai Alipur Bhadar, District Fatehpur and she is not daughter of Late Shiv Sewak son of Kedar Nath, resident of Saurai Bujurg, Kaushambi. To support this contention, a copy of a registered will dated 23-05-1990 executed by Late Shiv Sewak has been annexed as Annexure no. SRA-5 to the 5th Supplementary rejoinder affidavit wherein the testator had stated that he had no son or daughter. 7. Per contra, the informant claims that his mother Raju Devi is daughter of Late Shiv Sewak son of Kedarnath. The learned counsel for the informant has stated that the informant has filed a Suit No. 843 of 2022 in the Court of Civil Judge (J.D.) Kaushambi seeking cancellation of the aforesaid registered will dated 23-05-1990 executed by late Shiv Sewak. 8. The question whether Shiv Sewak had any son or daughter or not or whether the informant's mother Smt. Raju Devi is in fact daughter of Shiv Sewak or she is daughter of Surajbali, is a question which is yet to be determined by the competent Court after both the parties have had an opportunities to lead evidence in support of their respective contentions. 9. It has been averred in the affidavit filed in support of the bail application that the applicant is an innocent person, he has been falsely implicated in the case and he is in jail since 20-04-2020. It has also been stated that the co-accused Sarvnam Tiwari has already been released on bail by means of an order dated 10-12-2021 passed in Criminal Misc. Bail Application No. 45861 of 2021. 10. In Para 18 of the affidavit the applicant's criminal history of 14 cases has been disclosed, in all of which the applicant has been granted bail. 11. Sri. Pramod Kumar Srivastava, the learned counsel for the informant has vehemently opposed the prayer for grant of bail to the applicant and he has submitted that keeping in view the applicant's long criminal history, he should not be released on bail. He has further submitted that the applicant is already accused in a case under Section 307 I.P.C. which has subsequently been converted under Section 308 I.P.C. and in such a situation the applicant's released on bail would result in a threat to the informant. 12. He has further submitted that the applicant is already accused in a case under Section 307 I.P.C. which has subsequently been converted under Section 308 I.P.C. and in such a situation the applicant's released on bail would result in a threat to the informant. 12. Replying to the aforesaid submission, the learned counsel for the applicant has submitted that the F.I.R. in Case Crime No. 42 of 2019, (Annexure No. SCA-5 to the 5th Supplementary Counter Affidavit filed by the informant) had been filed against four accused persons, including the applicant and the allegation against the applicant was that he had exhorted his sons Pankaj Pandey and Neeraj Pandey and nephew Hiramani Pandey. The applicant has already been granted anticipatory bail in the aforesaid case by means of an order dated 26-09-2019 passed in Criminal Misc. Bail Application No. 37997 of 2019. 13. The learned counsel for the informant has relied upon a judgment passed by the Hon'ble Supreme Court in the case of Harjit Singh vs. Inderpreet Singh @ Inder and Another passed in Criminal Appeal No. 883 of 2021 decided on 24-08-2021, wherein the Hon’ble Supreme Court has held that: “From the material on record, it is clear that as and when he is granted bail, he came out of the jail, committed another offence and again went to jail. Even the High Court cancelled the bail in another case vide order dated 26-07-2019 specifically observing that while on bail during the pendency of the appeal, they were involved in other cases of heinous crime. From the material on record, it appears that there is a high possibility of threat and danger to the life and safety of the appellant herein/complainant and his family members, as is evident from the criminal history of respondent no. 1, detailed above.” 14. It is a well settled law that precedents are not to be read as statutes. The judgments passed by the Hon'ble Supreme Court and the High Court are to be read in the light of the factual background in which they are rendered. It is also equally settled that a difference of factual background in which the case was passed makes a word of a difference in an application of the precedence. 15. The judgments passed by the Hon'ble Supreme Court and the High Court are to be read in the light of the factual background in which they are rendered. It is also equally settled that a difference of factual background in which the case was passed makes a word of a difference in an application of the precedence. 15. While examining the applicability of the aforesaid decision, it would be appropriate to have a look at the law regarding application of precedents, as explained by the Hon'ble Supreme Court in Roger Shashoua vs. Mukesh Sharma, (2017) 14 SCC 722 , in the following words: “55.......It is well settled in law that the ratio decidendi of each case has to be correctly understood. In Regional Manager vs. Pawan Kumar Dubey, a three-Judge Bench ruled: (SCC p. 338, Para 7) “7.......It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.” 56. In Director of Settlements vs. M.R. Apparao, Another three-Judge Bench, dealing with the concept whether a decision is “declared law” observed: (SCC p. 650, Para 7) “7.......But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that forms the ratio and not any particular word or sentence. To determine whether a decision has “declared law” it cannot be said to be a law when a point is disposed of on concession and what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered.....” 57. In this context, a passage from CIT vs. Sun Engg. Works (P) Ltd. would be absolutely apt: (SCC pp. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered.....” 57. In this context, a passage from CIT vs. Sun Engg. Works (P) Ltd. would be absolutely apt: (SCC pp. 385-386, Para 39) “39.......It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete “law” declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a later case, the courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings.....” 58. In this context, we recapitulate what the Court had said in Ambica Quarry Works vs. State of Gujarat: (SCC p. 221, Para 18) “18.......The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. (See Lord Halsbury in Quinn vs. Leathem)....” 59. From the aforesaid authorities, it is quite vivid that a ratio of a judgment has the precedential value and it is obligatory on the part of the court to cogitate on the judgment regard being had to the facts exposited therein and the context in which the questions had arisen and the law has been declared. It is also necessary to read the judgment in entirety and if any principle has been laid down, it has to be considered keeping in view the questions that arose for consideration in the case. One is not expected to pick up a word or a sentence from a judgment dehors from the context and understand the ratio decidendi which has the precedential value. One is not expected to pick up a word or a sentence from a judgment dehors from the context and understand the ratio decidendi which has the precedential value. That apart, the court before whom an authority is cited is required to consider what has been decided therein but not what can be deduced by following a syllogistic process.” 16. A perusal of the aforesaid passage relied upon by the learned counsel for the informant indicates that in that case while deciding an appeal filed against an order of the High Court granting bail to the respondents, the Hon’ble Supreme Court had allowed the appeal and cancelled the bail on the ground that after being released on bail, the accused had committed an offence under Section 302 I.P.C. and in view of this peculiar factual backdrop the Hon’ble Supreme Court had found it a fit case for cancellation of the bail. In the present case there is no such allegation against the applicant. Therefore, I am of the view that the aforesaid decision rendered by the Hon'ble Supreme Court in Harjit Singh (Supra) was given keeping in view the peculiar background of that case and the same does not lay down a ratio of general application. 17. The learned counsel for the informant has next relied upon a judgment of this Court in Mokhtar Ansari vs. State of U.P. passed in Criminal Misc. Bail Application No. 46494 of 2021 decided on 13-06-2022. 18. In the aforesaid judgment this Court had relied upon the judgment of Hon'ble Supreme Court in Harjit Singh (Supra) and this Court rejected the prayer for bail on the ground that the applicant had a criminal history of 21 cases which were being tried by different sessions, divisions and districts. In the present case the applicant has some cases lodged against him in district Kaushambi alone out of which two cases have been lodged by the informant and one has been lodged by the informant's mother, therefore, the ratio laid down by this Court in the case of Mokhtar Ansari (supra) does not apply to the factual background of the present case and the same is distinguishable. 19. 19. It is prima-facie apparent from the allegations levelled in the application under Section 156 (3) Cr.P.C. that the dispute between the parties is essentially of a civil nature and the F.I.R. has been lodged merely in an attempt to give a colour of criminality to a civil dispute. 20. The learned counsel for the informant has drawn attention of the Court to the averments made in paragraph no. 5 of the 5th Supplementary Counter Affidavit in which the applicant’s criminal history of 14 cases, which have already been mentioned in paragraph 18 of the affidavit, has been reiterated. He has submitted that the applicant has been released on bail by means of an order dated 17-05-2019 in Bail Application No. 20871 of 2019 and after his released on bail, he has violated the conditions imposed by this Court in the bail order dated 17-05-2019 and he has again indulged in commission of as many as five cases. The details whereof has been mentioned in paragraph 8 of the Supplementary Counter Affidavit. 21. In reply to the 5th Supplementary Counter Affidavit, 5th Supplementary Rejoinder Affidavit has been filed and in paragraph 10 thereof, an explanation regarding the 5 cases alleged by the informant have been disclosed; 2 cases mentioned in paragraph 8 of the Supplementary Counter Affidavit are non-cognizable reports; in Case Crime No. 92 of 2019, under Sections 419, 420, 467, 468, 471 I.P.C. and P.S. Kadadham, District Kaushambi, the applicant has already been released on bail by means of an order dated 08-09-2020 passed by this Court in Criminal Misc. Bail Application No. 19752 of 2020, a copy whereof has been annexed as Annexure No. 6 to the affidavit filed in support of the bail application; in Case Crime No. 42 of 2019, under Sections 323, 504, 506, 307, 325 IPC, P.S. Kadadham, District Kaushambi, the applicant has been granted anticipatory bail by means of an order dated 26-09-2019 passed in Criminal Misc. Bail Application No. 37997 of 2019 and in Case Crime No. 10 of 2020, under Section 2/3 of U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986, P.S. Kadadham, District Kaushambi, the applicant has already been granted bail. Therefore, I do not find any merit in the submissions of the learned counsel for the informant that the aforesaid cases debar the applicant from seeking the relief for bail. 22. Therefore, I do not find any merit in the submissions of the learned counsel for the informant that the aforesaid cases debar the applicant from seeking the relief for bail. 22. Having considered the aforesaid facts and submission and keeping in view the facts that there is a civil dispute between the parties involving a dispute regarding parentage of the informant's mother, which dispute is yet to be determined by a competent court of law and the suit has already been filed by the informant which is pending before the Court of Civil Judge (J.D.) Kaushambi; that all the offences alleged against the applicant are triable by the Magistrate and that the co-accused Sarvnam Tiwari has already been released on bail, I am of the view that the applicant is also entitled to be released on bail pending conclusion of the trial. 23. The bail application is accordingly allowed. 24. Let the applicant-Rakesh Kumar be released on bail in Case Crime No. 721 of 2018, under Sections 419, 420, 466, 468, 471 I.P.C. and P.S. Saini, District Kaushambi on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions: (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not influence any witness. (iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv) The applicant shall not directly or indirectly make 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 to any police officer or tamper with the evidence. 25. In case of breach of any of the above condition, the prosecution shall be at liberty to move an application bail before this Court seeking cancellation of bail.