1

A.F.R.

Reserved on 15.07.2022

Delivered on 26.07.2022

Court No. - 16

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13762 of

2021

Applicant :- Ashish Mishra @ Monu

Opposite Party :- State of U.P.

Counsel for Applicant :- Brij Mohan Sahai, Prabhu Ranjan Tripathi,

Salil Kumar Srivastava

Counsel for Opposite Party :- G.A., Ajai Kumar, Amarjeet Singh

Rakhra, Shanshank Singh, Vivek Kumar Rai

Hon'ble Krishan Pahal,J.

1.Heard Sri G.S. Chaturvedi, learned Senior Counsel, connected

through Video Conferencing, assisted by Sri Salil Kumar Srivastava,

Sri B.M. Sahai, Sri Prabhu Ranjan Tripathi and Sri Rahul Srivastava,

learned Advocates for the applicant and Sri Amarjeet Singh Rakhra,

learned counsel assisted by Sri Shashank Singh, Sri Vivek Rai and

Ms. Anumita Chandra, learned Advocates appearing for one of the

victims, Jagjeet Singh as well as Sri Vinod Kumar Shahi, learned

Additional Advocate General, assisted by Sri Prachish Pandey, learned

AGA for the State.

2.Applicant seeks bail in Case Crime No. 219 of 2021, under

Sections 147, 148, 149, 307, 326, 427, 34, 302, 120-B IPC, Section 30

Arms Act, 1959 and Section 177 Motor Vehicles Act, 1988, Police

Station Tikuniya, District Lakhimpur Kheri, during the pendency of

trial.

3.The counter affidavits filed on behalf of the victim as well as

the State and the rejoinder affidavits are already on record. The

NeutralgCitationgNo.g-g2022:AHC-LKO:37671

2

written submissions filed by the parties at the conclusion of arguments

are also taken on record.

4. For the sake of brevity, the prosecution story is not being

repeated here, as the same is already discussed in earlier orders.

RIVAL CONTENTIONS :

ARGUMENTS ON BEHALF OF THE APPLICANT:

5.Sri Gopal Chaturvedi, learned Senior Counsel has submitted

that applicant has been falsely implicated in present case. He has

further submitted that in the ancestral village of applicant i.e.

Banveerpur, a traditional wrestling competition is organized annually.

As such on 3.10.2021, a public meeting was also organized in the

wrestling competition, in which the Deputy Chief Minister, Mr.

Keshav Prasad Maurya, was the Chief Guest. Learned Senior Counsel

has categorically stated that in the name of farmers, some leaders of

the opposition parties, in association with anti-social elements,

decided to protest the visit of the Chief Guest in village, Banveerpur,

against a statement made by the father of applicant, namely, Ajay

Mishra "Teny", regarding protest of the farmers in relation to the three

Agricultural Laws. It is stated that the helicopter of the Chief Guest

was to be landed at Maharaja Agrasen Play Ground Helipad, Tikuniya

and thereafter, the Chief Guest had to proceed by road to the place of

wrestling competition. However, without any permission, a number of

protesters, who were armed with lathis, swords etc., gathered there

along with notorious persons and encroached the entire area and even

dug up the helipad, making it impossible to land the helicopter there.

He has further stated that the description of the incident as narrated in

the F.I.R. is false, rather three persons including the driver of the

vehicle of applicant were killed by the protesters and no such incident,

as alleged in the F.I.R., had taken place.

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6.Learned Senior Counsel has further submitted that on being

chased by the protesters, the driver of the vehicle tried to run away

from there in order to save himself as well as the applicant, but since

the road, which was only 12 ft. wide, and on which, admittedly (in the

F.IR. itself) the protesters were standing on both sides of the road, the

vehicle overturned and fell into the ditch on the side of the road. He

has next submitted that one F.I.R. No. 220 of 2021, u/s 143, 147, 148,

149, 323, 324, 336, 302, 109 I.P.C., P.S. Tikuniya, District Kheri, was

also lodged by one Sumit Jaiswal stating therein that on 3.10.2021, a

wrestling competition was scheduled to be held at the village of Ajay

Mishra "Teny", in which Deputy Chief Minister, Mr. Keshav Prasad

Maurya, Government of U.P. was the Chief Guest. It is alleged in the

F.I.R. that the informant, along with other persons, went to receive the

Chief Guest. The informant was in the Thar vehicle, which was being

driven by one Hari Om Mishra. However, on the way, the protesters

attacked the vehicles, in which the driver of the Thar vehicle, namely,

Hari Om Mishra received head injury and he stopped the vehicle on

the side of the road. Thereafter, the driver was dragged from the

vehicle by the protesters. The informant and others somehow

succeeded to run away from the spot to save their lives, but the driver,

Hari Om Mishra and two others were not so lucky and were caught by

the protesters and later on, as per information, were killed by them.

There being a cross version of the present case, the applicant is

entitled for bail.

7.Learned Senior Counsel has also vehemently pointed out that

Crime No. 220/2021 lodged from the accused side is a sort of cross

version on the ground that both the sides have sustained injuries

including the death of eight persons and the lodging of subsequent

FIR by way of cross version is permissible under law on the basis of

Full Bench judgment of Supreme Court in the case of Upkar Singh

4

vs. Ved Prakash & others

1

, and as such the present bail application is

sought to be decided on the basis of evidence of both the cases arising

out of same transaction relating to the same occurrence at the same

point of time and same place as propounded by Full Bench judgment

of Supreme Court and the contents of paras 23 & 24 of the aforesaid

judgment of three Judges is being quoted below:

“23. Be that as it may, if the law laid down by this Court in

T.T. Antony case is to be accepted as holding that a second

complaint in regard to the same incident filed as a counter-

complaint is prohibited under the Code then, in our opinion,

such conclusion would lead to serious consequences. This will

be clear from the hypothetical example given hereinbelow i.e.

if in regard to a crime committed by the real accused he takes

the first opportunity to lodge a false complaint and the same is

registered by the jurisdictional police then the aggrieved

victim of such crime will be precluded from lodging a

complaint giving his version of the incident in question,

consequently he will be deprived of his legitimated right to

bring the real accused to books. This cannot be the purport of

the Code.

24. We have already noticed that in the T.T. Antony case this

Court did not consider the legal right of an aggrieved person

to file counterclaim, on the contrary from the observations

found in the said judgment it clearly indicates that filing a

counter-complaint is permissible.”

8.Sri Gopal Chaturvedi, learned Senior Counsel, has argued that a

false and concocted story of firing has been cooked up by the

prosecution. As per the FIR itself, after the said incident, the applicant

is stated to have run away firing as a cover, but admittedly there is no

such firearm injury sustained by any of the deceased person or injured

person either. Learned Senior Counsel, to buttress his arguments, has

placed much reliance on the autopsy report of deceased farmers,

wherein not a single firearm injury has been observed by the doctor.

During the course of investigation, the statement of the doctor, who

conducted the autopsy of the deceased farmers, was recorded under

1. (2004) 13 SCC 292

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Section 161 Cr.P.C., in which, he has opined that all these injuries

may have been caused in an accident. Learned Senior Counsel has

also submitted that the protesters brutally killed three persons, namely,

Hari Om Mishra, Shubham Mishra and Shyam Sunder, who were

traveling in the ill-fated Thar vehicle. He has further submitted that

the applicant was called during the course of investigation and he

joined and cooperated in the investigation and never misused the

liberty given by the Investigating Agency.

9.Regarding the criminal history of the applicant, learned Senior

Counsel has submitted that in Case Crime No. 92 of 2005, u/s 147,

323, 504, 506, 452 I.P.C., P.S. Tikuniya, District Kheri, the applicant

has been acquitted by the trial court vide judgment and order dated

24.03.2018 passed in Criminal Case No. 1497 of 2017 (State Vs.

Ashish Mishra @ Monu). A copy of the judgment and order dated

24.03.2018 is on record. The applicant has no other case pending

against him. The other case was withdrawn by the State.

10.Learned Senior Counsel has submitted that as per the admitted

case of the prosecution, the Thar vehicle was being driven by Hari Om

Mishra, and the applicant was sitting on the left side, therefore, the

case of prosecution of crushing the protesters by the applicant is

improbable.

11.Learned Senior Counsel for the applicant has submitted that the

applicant went to jail on 10.10.2021, and was released on 15.2.2022.

He surrendered in compliance of the order of the Apex Court on

24.4.2022 and is in jail since then. He has complied with the order of

the Apex Court and has even cooperated in investigation. The charge-

sheet has already been filed and the applicant is ready to cooperate in

the trial and there is no likelihood of him misusing the liberty, in case,

he is enlarged on bail.

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12.Learned Senior Counsel has further stated that the applicant was

enlarged on bail by this Court vide order dated 10.2.2022 (corrected

vide order dated 14.2.2022). The Supreme Court has not rejected the

bail application. Rather, it has remanded it back for consideration on

the ground that the victim has not been heard. The said order shall not

affect the merits of the case as the case of the applicant for bail is

clearly made out.

13. Learned Senior counsel has stated that as per paragraph 43 of

the order of the Supreme Court, the case has been remanded back to

the High Court for fresh adjudication in a fair, impartial and

dispassionate manner. Paragraph 43 of the said order reads as

follows :-

“43. This Court is tasked with ensuring that neither the right

of an accused to seek bail pending trial is expropriated, nor

the ‘victim’ or the State are denuded of their right to oppose

such a prayer. In a situation like this, and with a view to

balance the competing rights, this Court has been invariably

remanding the matter(s) back to the High Court for a fresh

consideration. We are also of the considered view that ends of

justice would be adequately met by remitting this case to the

High Court for a fresh adjudication of the bail application of

the Respondent-Accused, in a fair, impartial and dispassionate

manner, and keeping in view the settled parameters which

have been elaborated in paragraphs 30 & 31 of this order.”

14.Learned Senior Counsel has further referred to paragraph 46 of

the order of Supreme Court, wherein no opinion has been expressed

on the facts or merits and all questions of law have been left open for

this Court to consider and decide preferably within a period of three

months. Paragraph 46 of the said order reads as follows :-

“46. We set aside the impugned order dated 10.02.2022

(corrected on 14.2.2022) and remit the matter back to the

High Court. Respondent No.1 shall surrender and be taken

into custody as already directed in paragraph 39 above. We

have not expressed any opinion either on facts or merits, and

all questions of law are left open for the High Court to

consider and decide. The High Court shall decide the bail

application afresh expeditiously, and preferably within a

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period of three months. The appeal is disposed of in the above

terms.”

15.Learned Senior Counsel has stated that the bail applications of

the co-accused persons, Lavkush, Ankit Das, Sumit Jaiswal and

Shishupal, which have been rejected by this Court vide order dated

9.5.2022, passed in Criminal Misc. Bail Application Nos. 2986 of

2022, 1853 of 2022, 2461 of 2022 and 2699 of 2022, shall have no

bearing on the case of the applicant, as he was not a party in

personam in the case decided by the co-ordinate Bench of this Court.

16.Learned Senior Counsel has further stated that the prosecution

has not come with clean hands as the case was later on modified from

being that of gunshot injuries to that of injuries due to crushing by

vehicles. The applicant was admittedly not driving the said Thar

vehicle, rather was sitting by the side of the driver, and it was the

driver, who might have panicked due to rage of the public at large.

The case is of mob lynching and there was so hue and cry at the place

of occurrence that there was no chance of anybody hearing the

applicant saying “teach them a lesson.”

17.Counsel for the applicant, Sri B.M. Sahai, has stated that the

applicant has not abused the bail and has complied with the conditions

thereof, when he was accorded bail. He should again be enlarged on

bail. The police has filled up the lacuna in the prosecution case by

roping in the new witnesses. There is no possibility of applicant

daring to commit such an offence, who happened to be a political

person, as there is no possibility of three vehicles crushing 15,000

persons, who are said to have gathered at the place of occurrence.

18.Learned counsel has further stated that the provisions of Section

144 Cr.P.C. were applicable to the agitating farmers as well and they

have categorically flouted the proclamation under Section 144 Cr.P.C.,

as they are stated to have even dug up the helipad meant for the

landing of the helicopter of the Deputy Chief Minister, making it non-

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functional. The procession by any means cannot be termed as

peaceful.

19.Learned counsel has further stated that initially at the time of

lodging of the FIR, Sections 279, 338 and 304-A IPC were mentioned,

but the same have been deleted later on by the investigating agency

with the permission of the C.J.M. concerned. This implies that the

vehicles were being driven at a normal speed.

20.Learned counsel has further placed reliance on para 40 of the

remand order dated 18.4.2022, passed by the Apex Court, wherein it

has been observed as follows:-

“40. ….. regardless of the stringent provisions in a penal law

or the gravity of the offence, has time and again recognized

the legitimacy of seeking liberty from incarceration. To put it

differently, no accused can be subjected to unending detention

pending trial, especially when the law presumes him to be

innocent until proven guilty. Even where statutory provisions

expressly bar the grant of bail, such as in cases under the

Unlawful Activities (Prevention) Act, 1967, this Court has

expressly ruled that after a reasonably long period of

incarceration, or for any other valid reason, such stringent

provisions will melt down, and cannot be measured over and

above the right of liberty guaranteed under Article 21 of the

Constitution. (See Union of India v. K.A. Najeeb, (2021) 3

SCC 713).”

21.Learned counsel has further stated that in paragraph 28 of the

order of the Apex Court, it has been propounded that the grant of bail

under Section 439 Cr.P.C. is one of wide amplitude and this discretion

is unfettered. On the contrary, the High Court or the Sessions Court

must grant bail after the application of a judicial mind, following well-

established principles, and not in a cryptic or mechanical manner.

22.Sri Salil Kumar Srivastava, learned counsel arguing on behalf

of the applicant, has stated that the capturing of helipad in order to

show protest is itself an offence, which is established by the

statements of the witnesses, which have been annexed to the counter

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affidavit filed on behalf of the victim. This shows the malice at the

part of the protestors.

23.Learned counsel has further stated that one Punto car from the

side of the applicant was ransacked by the protesters with an ulterior

motive, which goes to show their defiance of law.

24.Learned counsel has next stated that the statement recorded

under Section 164 Cr.P.C. of one witness, namely, Prabhujeet Singh

categorically indicates that he had seen one Satish Rana running away

from the Thar vehicle and later on, he is said to have seen Sumit

Jaiswal running from the said vehicle firing in air. The said statement

is on page number 164 of the counter affidavit filed by the

victim/complainant, indicating the absence of applicant at the scene of

occurrence.

25.Sri Salil Kumar Srivastava, learned counsel, has further stated

that the district administration has provided one gunner each to all the

ninety-eight witnesses and moreover, their family members are being

provided proper security and a coverage of CCTV cameras alongwith

a barrier on the road to their residence and thus, there is no possibility

of any person hampering or tampering with the prosecution witnesses.

26.Learned counsel for applicant has further stated that in the

statement of another witness, namely, Simranjeet Singh, recorded

under Section 164 Cr.P.C., copy whereof has been filed in the

rejoinder affidavit, it has been stated that the applicant and the co-

accused person, Sumit Jaiswal are said to have taken the refuge in a

sugarcane field after firing in air.

27.Learned counsel has placed much reliance on the site plan,

wherein no sugarcane field finds mention. The said discrepancy

categorically falsifies the prosecution story that applicant had alighted

from Thar vehicle after firing and had taken shelter in the sugarcane

field.

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28.Sri Salil Kumar Srivastava, learned counsel, has further stated

that from the side of the applicant, three persons were put to death and

three had sustained grievous injuries including fractures, which have

not been explained by the prosecution. The said non-explanation of

the injuries caused is fatal to the prosecution and the applicant is

entitled for bail on this ground. Learned counsel has placed reliance

on the judgement of the Supreme Court in Padam Singh vs. State of

U.P.

2

, wherein it has been held that:-

“5. ….when the prosecution does not explain the injury

sustained by the accused at about the time of the occurrence

or in the course of occurrence, the court can draw the

inference that the prosecution has suppressed the genesis and

origin of the occurrence and has thus, not presented the true

version. It is also well settled that where the evidence consists

of interested or inimical witnesses, then, non-explanation of

the injury on the accused by the prosecution assume greater

importance…...”

29.Learned counsel has placed much reliance on the judgement of

the Supreme Court passed in Vijayee Singh vs. State of U.P

3

., which

is quoted below:

10. It was further observed that:

"... in a murder case, the non-explanation of the injuries

sustained by the accused at about the time of the

occurrence or in the course of altercation is a very

important circumstance from which the court can draw

the following inferences:

(1) that the prosecution has suppressed the genesis and

the origin of the occurrence and has thus not presented

the true version;

(2) that the witnesses who have denied the presence of

the injuries on the person of the accused are lying on a

most material point and therefore their evidence is

unreliable.

(3) that in case there is a defence version which

explains the injuries on the person of the accused it is

2. (2000) 1 SCC 621

3. (1990) 3 SCC 190

11

rendered probable so as to throw doubt on the

prosecution case."

30.Learned counsel has next stated that it is undisputed fact that in

the charge sheet, after filing of the bail application, new sections were

added and a correction/amendment application was moved in this

Court which was allowed vide order dated 18.1.2022 and the sections

so mentioned in the charge sheet were amended in the memo of the

bail application, which has already been undertaken in the original

memo of the bail application. Pursuant thereto, Sections

279/338/304A IPC were deleted and Sections 307/326/427/34 IPC,

Section 30 Arms Act and Section 177 Motor Vehicles Act, 1988 were

added.

31.Learned counsel has further argued that the FIR is the

foundation stone of the offence and the story as narrated in it, has

been later on completely changed by the prosecution, which itself is

indicative of false implication. It is not a case of improvement or

embellishment, rather a case of turning the case upside down.

32.Learned counsel has further stated that right of the private

defence as contemplated under Section 97/103 IPC is available to the

accused side as even according to the prosecution case, the three

persons sitting in Thar vehicle were murdered and three others are

stated to have sustained grievous injuries. There was no possibility of

applicant being present there and escaping.

33.Learned counsel has next stated that the investigating agency

inspected the place of occurrence and also reconstructed/re-created the

alleged occurrence and in the inspection report of recreation, it has

been mentioned that at the time of occurrence, the Thar vehicle was

running at a normal speed from the place of meeting i.e. Maharaja

Agrasen Inter College ground upto 98 meters approximately, till

turning to Kalesharan and thereafter, due to some reason, the speed of

Thar vehicle was increased from its normal speed. It is also submitted

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that while reconstructing the alleged occurrence, the inspection team

installed the dummy of farmers at both sides of the road and the

dummy Thar vehicle alongwith two other dummies of Fortuner and

Scorpio vehicles by running with normal speed upto 98 meters

approximately, from Maharaja Agrasen Inter College were collided

with the dummies of farmers after increasing the speed of the

vehicles, which corroborates the factum of loosing of mental

equilibrium of the driver of Thar vehicle, Hari Om Mishra, who has

been murdered by the complainant side.

34.Learned counsel has further stated that the story set up by the

prosecution is false as the ballistics expert report of the weapons

seized from the applicant side does not support the same.

35.Learned counsel has placed reliance on the call detail report

(CDR) which reveals that the mobile no. 9721258797 of the applicant

Ashish Mishra @ Monu was attended 25 times within a span of 40

minutes between 2.48 pm and 3.28 pm on 3.10.2021, and the location

report of the said mobile reveals his presence at the same place

throughout the day. Thus, the plea of alibi of the applicant of having

been present at the place of dangal finds support from the CDR and

location report available. The said fact finds support from the

statement of a considerable number of witnesses, who have filed their

notarial affidavits and submitted through registered posts

demonstrating that the applicant was not present at the place of

occurrence but rather, he was present at the place of dangal. The SIT

has deliberately not recorded their statements under Section 161

Cr.P.C.

36.Learned counsel has further stated that the charge-sheet under

Sections 188 and 143 IPC has also been filed against the protesters

indicative of their malice having formed unlawful assembly,

disobeying the order duly promulgated by the public servant.

13

37.Learned counsel has submitted that in the present subject

matter, charge sheet has been filed under Sections 34, 149 and 120-B

IPC which is against the principles of constructive criminality. It was

the complainant side, which was aggressor and not the applicant. The

three accused persons in the cross FIR are in jail. Much reliance has

been placed on para 60 of the judgement of Allahabad High Court in

Nanha S/o Nabhan Kha vs. State of U.P.

4

, which reads as under:

“60. As regards the second part of the referred question

whether it is duty of the co-accused to disclose in his bail

application the fact that on an earlier occasion the bail

application of another co-accused in the same case has been

rejected. The prior rejection of the bail application of one of

the accused cannot preclude the court from granting bail to

another accused whose case has not been considered at the

earlier occasion. The accused who comes up with the prayer

for bail and who had no opportunity of being heard or placing

material before the Court at the time when the bail of another

accused was heard and rejected, cannot be prejudiced in any

other manner by such rejection.”

38.Learned counsel has further placed reliance on the judgment of

Supreme Court in Sanjay Chandra vs. Central Bureau of

Investigation

5

, which reads as under:

“18. In his reply, Shri. Jethmalani would submit that as the

presumption of innocence is the privilege of every accused,

there is also a presumption that the appellants would not

tamper with the witnesses if they are enlarged on bail,

especially in the facts of the case, where the appellants have

cooperated with the investigation. In recapitulating his

submissions, the learned senior counsel contended that there

are two principles for the grant of bail - firstly, if there is no

prima facie case, and secondly, even if there is a prima facie

case, if there is no reasonable apprehension of tampering with

the witnesses or evidence or absconding from the trial, the

accused are entitled to grant of bail pending trial. He would

submit that since both the conditions are satisfied in this case,

the appellants should be granted bail.

……….

4. (1992) SCC Online All 871

5. (2012) 1 SCC 40

14

21. In bail applications, generally, it has been laid down from

the earliest times that the object of bail is to secure the

appearance of the accused person at his trial by reasonable

amount of bail. The object of bail is neither punitive nor

preventative. Deprivation of liberty must be considered a

punishment, unless it is required to ensure that an accused

person will stand his trial when called upon. The courts owe

more than verbal respect to the principle that punishment

begins after conviction, and that every man is deemed to be

innocent until duly tried and duly found guilty.

22. From the earliest times, it was appreciated that detention

in custody pending completion of trial could be a cause of

great hardship. From time to time, necessity demands that

some un-convicted persons should be held in custody pending

trial to secure their attendance at the trial but in such cases,

`necessity' is the operative test. In this country, it would be

quite contrary to the concept of personal liberty enshrined in

the Constitution that any person should be punished in respect

of any matter, upon which, he has not been convicted or that

in any circumstances, he should be deprived of his liberty

upon only the belief that he will tamper with the witnesses

if left at liberty, save in the most extraordinary circumstances.

23. Apart from the question of prevention being the object of

refusal of bail, one must not lose sight of the fact that any

imprisonment before conviction has a substantial punitive

content and it would be improper for any court to refuse bail

as a mark of disapproval of former conduct whether the

accused has been convicted for it or not or to refuse bail to an

unconvicted person for the purpose of giving him a taste of

imprisonment as a lesson.

…………

39. Coming back to the facts of the present case, both the

Courts have refused the request for grant of bail on two

grounds: The primary ground is that the offence alleged

against the accused persons is very serious involving deep

rooted planning in which, huge financial loss is caused to the

State exchequer ; the secondary ground is that the possibility

of the accused persons tampering with the witnesses. In the

present case, the charge is that of cheating and dishonestly

inducing delivery of property and forgery for the purpose of

cheating using as genuine a forged document. The punishment

for the offence is imprisonment for a term which may extend

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to seven years. It is, no doubt, true that the nature of the

charge may be relevant, but at the same time, the punishment

to which the party may be liable, if convicted, also bears upon

the issue. Therefore, in determining whether to grant bail,

both the seriousness of the charge and the severity of the

punishment should be taken into consideration.

40. The grant or refusal to grant bail lies within the discretion

of the court. The grant or denial is regulated, to a large extent,

by the facts and circumstances of each particular case. But at

the same time, right to bail is not to be denied merely because

of the sentiments of the community against the accused. The

primary purposes of bail in a criminal case are to relieve the

accused of imprisonment, to relieve the State of the burden of

keeping him, pending the trial, and at the same time, to keep

the accused constructively in the custody of the court, whether

before or after conviction, to assure that he will submit to the

jurisdiction of the court and be in attendance thereon

whenever his presence is required.

41. This Court in Gurcharan Singh v.. State (Delhi Admn.)

6

,

observed that two paramount considerations, while

considering petition for grant of bail in a non-bailable offence,

apart from the seriousness of the offence, are the likelihood of

the accused fleeing from justice and his tampering with the

prosecution witnesses. Both of them relate to ensure the fair

trial of the case. Though, this aspect is dealt by the High Court

in its impugned order, in our view, the same is not convincing.

42. When the undertrial prisoners are detained in jail custody

to an indefinite period, Article 21 of the Constitution is

violated. Every person, detained or arrested, is entitled to

speedy trial, the question is: whether the same is possible in

the present case.”

39.Learned counsel has also referred the judgment of Privy

Council in Mirza Akbar vs. Kind Emperor

7

, which reads thus:

“This being the principle, their Lordships think the words

of Sec. 10 must be construed in accordance with it and are not

capable of being widely construed so as to include a statement

made by one conspirator in the absence of the other with

reference to past acts done in the actual course of carrying out

the conspiracy, after it has been completed. The common

intention is in the past. In their Lordships' judgment, the

6. (1978) 1 SCC 118

7. AIR 1940 Privy Council 176

16

words "common intention" signify a common intention

existing at the time when the thing was said, done or written

by the one of them. Things said, done or written while the

conspiracy was on foot are relevant as evidence of the

common intention, once reasonable ground has been shown to

believe in its existence. But it would be a very different matter

to hold that any narrative or statement or confession made to a

third party after the common intention or conspiracy was no

longer operating and had ceased to exist is admissible against

the other party. There is then no common intention of the

conspirators to which the statement can have reference. In

their Lordships' judgment Sec. 10 embodies this principle.

That is the construction which has been rightly applied to Sec.

10 in decisions in India, for instance, in Emperor v. Ganesh

Raghunath, I.L.R. 55 Bom. 839 (1931) and Emperor v. Abani

I.L.R. 38 Cal. 169. In these cases the distinction was rightly

drawn between communications between conspirators while

the conspiracy was going on with reference to the carrying out

of the conspiracy and statements made, after arrest or after the

conspiracy has ended, by way of description of events then

past.”

40.Learned counsel has referred to the judgment of the Supreme

Court in Satender Kumar Antil vs. Central Bureauu of Investigation

& another

8

, which reads thus:

“66. What is left for us now to discuss are the economic

offences. The question for consideration is whether it should

be treated as a class of its own or otherwise. This issue has

already been dealt with by this Court in the case of P.

Chidambaram v. Directorate of Enforcement, (2020) 13 SCC

791, after taking note of the earlier decisions governing the

field. The gravity of the offence, the object of the Special Act,

and the attending circumstances are a few of the factors to be

taken note of, along with the period of sentence. After all, an

economic offence cannot be classified as such, as it may

involve various activities and may differ from one case to

another. Therefore, it is not advisable on the part of the court

to categorise all the offences into one group and deny bail on

that basis...”

41.He has also placed reliance on the case law of P. Chidambaram

v. Directorate of Enforcement

9

, which reads as under:-

8. Misc. Application No. 1849 of 2021 In Special Leave Petition (Crl.) No. 5191 of 2021

9. (2020) 13 SCC 791

17

“23. Thus, from cumulative perusal of the judgments cited on

either side including the one rendered by the Constitution

Bench of this Court, it could be deduced that the basic

jurisprudence relating to bail remains the same inasmuch as

the grant of bail is the rule and refusal is the exception so as to

ensure that the accused has the opportunity of securing fair

trial. However, while considering the same the gravity of the

offence is an aspect which is required to be kept in view by

the Court. The gravity for the said purpose will have to be

gathered from the facts and circumstances arising in each

case. Keeping in view the consequences that would befall on

the society in cases of financial irregularities, it has been held

that even economic offences would fall under the category of

“grave offence” and in such circumstance while considering

the application for bail in such matters, the Court will have to

deal with the same, being sensitive to the nature of allegation

made against the accused. One of the circumstances to

consider the gravity of the offence is also the term of sentence

that is prescribed for the offence the accused is alleged to

have committed. Such consideration with regard to the gravity

of offence is a factor which is in addition to the triple test or

the tripod test that would be normally applied. In that regard

what is also to be kept in perspective is that even if the

allegation is one of grave economic offence, it is not a rule

that bail should be denied in every case since there is no such

bar created in the relevant enactment passed by the legislature

nor does the bail jurisprudence provide so. Therefore, the

underlining conclusion is that irrespective of the nature and

gravity of charge, the precedent of another case alone will not

be the basis for either grant or refusal of bail though it may

have a bearing on principle. But ultimately the consideration

will have to be on case-to-case basis on the facts involved

therein and securing the presence of the accused to stand trial.

CONTENTIONS OF THE VICTIM/COMPLAINANT:

42.Learned counsel for the victim/complainant, Sri Amarjeet

Rakhra, at the outset, has vehemently opposed the prayer for bail of

the applicant on the ground that the bail rejection order of the

applicant at the Court of Sessions does not include all the sections,

wherein the bail is being sought by the applicant from this Court. The

bail application in the added sections i.e. 307, 326, 427, 34 IPC, 30

18

Arms Act and 177 Motor Vehicles Act, 1988, has been directly moved

before the High Court without taking recourse to the Sessions Court,

Kheri, which is not permissible under law.

43.Learned counsel has further stated that applicant is the

mastermind of the crime and is the main accused person to whom the

lead role has been assigned. He is the only named accused person in

the FIR, who is alleged to have been involved in the gruesome and

cold-blooded murder of five innocent, unarmed persons. The bail

application of four co-accused persons, who were not named in the

FIR and whose role was of assisting, aiding and conspiring with the

applicant in the commission of the said offence, have already been

rejected by a detailed and reasoned order of this Court dated 9.5.2022

passed in Criminal Misc. Bail Application Nos. 2986 of 2022, 1853 of

2022, 2461 of 2022 and 2699 of 2022.

44. Learned counsel has next stated that as far as rejection of bail is

concerned, there may not strictly be parity, yet propriety and

consistency in judicial approach demands that this Court may reject

the bail application of the applicant, Ashish Mishra @ Monu, whose

role in the commission of crime is much more prominent than of the

co-accused persons, whose bail applications have been rejected.

45. Learned counsel has further argued that the applicant, who is

the son of Union Minister of State For Home, and who himself is a

political person, was a contender on BJP ticket from Nighasen

Constituency for Uttar Pradesh Assembly Elections held in the year

2022. The applicant has a criminal history of two more cases in

addition to the present case. Learned counsel has stated that the

power, the applicant yields, can be appreciated from the fact that in

one of the cases, the applicant has been acquitted, while the other case

has been withdrawn by the State Government. The character,

behavior, means, position and standing of the accused, when viewed

19

in juxtaposition of crime in question, is such that releasing him on bail

would result in justice being thwarted.

46.Learned counsel, Sri Rakhra has further stated that

appreciating the fact that free and fair investigation was not possible

due to the status and profile of the applicant and sensing the

seriousness of the offence committed by him, none other than the

Apex Court had constituted a Special Investigation Team (SIT) of

five senior police officers and the said team was headed by a retired

Judge of Punjab and Haryana High Court.

47.Learned counsel for the victim has further stated that in addition

to this, notwithstanding the powers of the trial court in this regard, the

Apex Court, while sensing the gravity of the situation, had directed

the State Government to provide security/armed gunners to the

prosecution witnesses in the present case and it was also directed that

the statements of the witnesses under Section 164 Cr.P.C. may be

recorded by the Magistrate, to prevent the possibility of the witnesses

being pressurized, threatened or won over by the accused.

48.Learned counsel has next stated that despite the protection

provided to the witnesses, two of them, namely, Diljyot Singh and

Hardeep Singh have been assaulted and threatened by the associates

and supporters of the applicant warning them to dare depose against

the applicant. A copy of the FIR No. 46 of 2022, P.S.- Tikuniya,

District- Kheri, lodged on 11.3.2022 and FIR No. 126 of 2022 lodged

on 11.4.2022 at P.S.- Bilaspur, District- Rampur, have also been

annexed to the counter affidavit, which indicates that the release of the

applicant shall lead to witnesses being won over by him.

49.Learned counsel has next stated that gravity of the offence and

the severity of the punishment in the event of conviction are also the

relevant factors, which weigh heavily against the relief of bail being

granted to the applicant.

20

50.The applicant alongwith his associates has been charge-sheeted

for causing a premeditated and cold-blooded murder of as many as

five persons (four farmers and one journalist) and injuring thirteen

other persons. The offence committed by applicant includes murder,

which is punishable with death or imprisonment for life.

51.Learned counsel has contended that there are other injured

witnesses, who have given the statement that the applicant was the

inmate of the Thar vehicle that had deliberately run over them with an

intention to cause their death and the inmates are said to have been

seen and heard exhorting to kill the farmers. The witnesses had seen

the applicant getting off from Thar vehicle and running towards the

fields under the cover of his own firing. Learned counsel has placed

reliance on the statements of several witnesses recorded under Section

164 Cr.P.C. to the effect. Learned counsel has referred to the call

detail record (CDR) of the applicant, wherein he is said to have made

extra judicial confession. Learned counsel has referred the statements

of witnesses, namely, Taufeek Ahmad, Arun Kumar Gupta and Yasin

Mohammad in support of the said contention. Learned counsel has

also referred the statements of independent witnesses, the

photographer and the police officials, who have stated that the

applicant was missing from the site of wrestling competition at the

time of offence thereby negating his plea of alibi.

52. Learned counsel has further stated that the motive to commit

crime is also proved and the applicant had full knowledge of the fact

that the road route from which the Chief Guest was to travel, had been

altered and yet the applicant, in a premeditated and cold-blooded

manner, went on the route of the retrieving farmers running at a high

speed with a view to teach them a lesson and ran them over from

behind.

21

53. Learned counsel has also stated that the FSL report conclusively

establishes the fact that the fire arms (pistol and rifle) of the applicant

were used, thus corroborating the statement of the eye witnesses.

54. Learned counsel has stated that the prosecution allegations are

further substantiated by the CCTV camera footages/DVR suggesting

that on the date of incident i.e. 3.10.2021, the three vehicles (carrying

the applicant and other co-accused persons) headed to the place of

incident, with other miscreants/assailants clinging to them.

55.Learned counsel has stated that there are other video clips to

prove that the unarmed farmers, who were running to their homes,

were trampled and crushed under the wheels of the Thar vehicle and

the other two vehicles, namely, Fortuner and Scorpio, coming from

behind.

56.Learned counsel for the victim/complainant has stated that the

arguments tendered by the counsels for the applicant such as

inconsistency of the injuries sustained by the deceased with the

version of the FIR are not tenable, the fact is that the charge sheet

having already been filed and the circumstance has already been dealt

with by the Apex Court at the time of setting aside the bail granted to

the applicant.

57.Learned counsel has further stated that the police officers and

the district authorities to name a few, Awdhesh Kumar Yadav,

Vishambher Yadav, SDM Swati Shukla, have categorically stated that

the three vehicles in question were being driven at a high speed and

despite their efforts to stop them, the vehicles in question drove past

them and crushed the innocent farmers. There are statements of

twenty witnesses, who have testified that they saw the applicant in the

Thar jeep running over the farmers.

58.Learned counsel has further submitted that eight witnesses have

stated before SIT that they saw and heard the applicant abetting and

22

asking the driver of the Thar vehicle to kill the protestors by crushing

them.

59.Learned counsel has stated that the said vehicles have been used

as a weapon in view of the settled case law of the Supreme Court

referred in the order of the Supreme Court. The ratio of this case is

applicable to the present case. Para 45 of the judgement of the

Supreme Court in the case of Alister Anthony Pareira vs. State of

Maharashtra

10

, reads hereinunder:-

“45. In Prabhakaran v. State of Kerala, 2007 (14) SCC 269,

this Court was concerned with the appeal filed by a convict

who was found guilty of the offence punishable under Section

304 Part II IPC. In that case, the bus driven by the convict ran

over a boy aged 10 years. The prosecution case was that the

bus was being driven by the Appellant therein at the enormous

speed and although the passengers had cautioned the driver to

stop as they had seen children crossing the road in a queue,

the driver ran over the student on his head. It was alleged that

the driver had real intention to cause death of persons to

whom harm may be caused on the bus hitting them. He was

charged with offence punishable under Section 302 IPC. The

Trial Court found that no intention had been proved in the

case but at the same time the accused acted with the

knowledge that it was likely to cause death, and, therefore,

convicted the accused of culpable homicide not amounting to

murder punishable under Section 304 Part II IPC and

sentenced him to undergo rigorous imprisonment for five

years and pay a fine of Rs.15,000/- with a default sentence of

imprisonment for three years. The High Court dismissed the

appeal and the matter reached this Court.

46. While observing that Section 304A speaks of causing

death by negligence and applies to rash and negligent acts and

does not apply to cases where there is an intention to cause

death or knowledge that the act will in all probability cause

death and that Section 304A only applies to cases in which

without any such intention or knowledge death is caused by a

rash and negligent act, on the factual scenario of the case, it

was held in Prabhakaran case that the appropriate conviction

would be under Section 304 IPC and not Section 304 Part II

IPC. Prabhakaran does not say in absolute terms that in no

case of an automobile accident that results in death of a

10. AIR 2012 SC 3802

23

person due to rash and negligent act of the driver, the

conviction can be maintained for the offence under Section

304 Part II Indian Penal Code even if such act (rash or

negligent) was done with the knowledge that by such act of

his, death was likely to be caused. Prabhakaran turned on its

own facts.

47. Each case obviously has to be decided on its own facts. In

a case where negligence or rashness is the cause of death and

nothing more, Section 304A may be attracted but where the

rash or negligent act is preceded with the knowledge that such

act is likely to cause death, Section 304 Part II Indian Penal

Code may be attracted and if such a rash and negligent act is

preceded by real intention on the part of the wrong doer to

cause death, offence may be punishable under Section 302

Indian Penal Code.”

60. Learned counsel has further stated that 37 witnesses have got

their statements recorded u/s 161 Cr.P.C. that they saw the applicant

and his associates firing from the weapons as a cover and running

away from the scene of occurrence.

61.Learned counsel has placed much reliance on the statement of

photographer Manish Gupta, who has stated that of the twenty

photographs clicked by him, none of them shows the applicant at the

scene of occurrence between 02:03:49 and 04:03:42.

62. Learned counsel has stated that by the FIR No. 220 of 2021

from the side of the applicant, a cross version has been tried to be

created and the FIR has been registered on the next date of incident in

which the name of the applicant is deliberately missing who was

sitting in the Mahindra Thar car.

63.Learned counsel has stated that a perusal of the final report

prepared by the SIT reveals that with a view to deal with the

protesting farmers and teaching them a lesson, the applicant Ashish

Mishra @ Monu, as a premeditated plan, collected his friends and

associates and lodged them at Shiva Hotel, Tikuniya. The co-accused

persons, Ankit Das, Lateef @ Kale, Nandan Singh Bhist, Satyam

Tripathi and Shekhar Bharti, all associates of Ashish Mishra @ Monu,

24

gathered at Lakhimpur Kheri with the arms and ammunition

notwithstanding the fact that Section 144 Cr.P.C. was in place and it

was not permissible to carry firearms in the region. The applicant,

Ashish Mishra @ Monu, the applicant got piqued and wanted to take

revenge from the protesting farmers because the Punto vehicle

carrying his supporters was damaged to some extent in the protest. In

addition to it, the hoardings bearing the photographs of the applicant

and his father, Ajay Mishra @ Teny (Union Minister of State for

Home) were damaged and due to the protest of the farmers, the then

Deputy Chief Minister, Keshav Prasad Maurya, had to alter the route

to the wrestling venue. With the anger and revenge in mind, the

applicant is said to have left the wrestling venue armed with firearms,

alongwith his associates and conspired to teach the protesting farmers

a lesson and with this intent, drove his Mahindra Thar vehicle over the

farmers, who were returning home after peaceful demonstration.

64.Learned counsel has stated that as a malafide intent, the

applicant has attempted to place all the blame on the driver- Hari Om

Mishra, who is no more, while as a matter of fact, he was nothing

more than a tool to execute the evil designs of the applicant. Learned

counsel has further referred the portion of the remand order of the

Apex Court dated 18.4.2022, wherein it has been observed that :-

“35. The High Court has completely lost sight of the

principles which conventionally govern the Court’s discretion

when deciding the question whether or not to grant bail, held

that while the allegations in the FIR that the accused used his

firearm and the subsequent postmortem and injury reports

may have some limited bearing, there was no legal necessity

to give undue weightage to the same.”

65.He has argued that while remitting the Bail Application to the

High Court for adjudication afresh, the Apex Court has cited certain

earlier decisions given by it on the principles which should govern the

discretion of bail vested with the Courts.

25

66.It has been held in Kanwar Singh Meena vs. State of

Rajasthan.

11

, that:

“10. Each criminal case presents its own peculiar factual

scenario and therefore, certain grounds peculiar to a particular

case may have to be taken into account by the

court………..The High Court or the Sessions Court is bound

to cancel such bail orders particularly when they are passed

releasing accused involved in heinous crimes they ultimately

result in weakening the prosecution case and have adverse

impact on the society.

67.In Prasanta Kumar Sarkar vs. Ashis Chatterjee & Anr.

12

, it has

been held that:-

“9. ……. 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.”

68.In the case of Mahipal vs. Rajesh Kumar alias Polia & Anr.

13

,

it has been held that:-

“12. The determination of whether a case is fit for the grant of

bail involves the balancing of numerous factors, among which

the nature of the offence, the severity of the punishment and a

prima facie view of the involvement of the accused are

important. No straitjacket formula exists for courts to assess

an application for the grant or rejection of bail. At the stage of

assessing whether a case is fit for the grant of bail, the court is

11. (2012) 12 SCC 180

12. (2010) 14 SCC 496

13. (2020) 2 SCC 118

26

not required to enter into a detailed analysis of the evidence

on record to establish beyond reasonable doubt the

commission of the crime by the accused. That is a matter for

trial. However, the Court is required to examine whether there

is a prima facie or reasonable ground to believe that the

accused had committed the offence and on a balance of the

considerations involved, the continued custody of the accused

subserves the purpose of the criminal justice system. Where

bail has been granted by a lower court, an appellate court

must be slow to interfere and ought to be guided by the

principles set out for the exercise of the power to set aside

bail.”

69.In Shahzad Hasan Khan vs. Ishtiaq Hasan Khan and

Another

14

, it is held that :-

“8. Having regard to the facts and circumstances of this case

we are of the opinion that the learned judge committed serious

error in recalling his order dated June 3, 1986 and enlarging

the respondent on bail. The occurrence took place, in broad

daylight, in a busy market place and there are a number of eye

witnesses to support the case against the respondent who was

named as an assailant in the First Information Report.

Immediately after the occurrence he could not be traced (it

was alleged that he had absconded) for more than a month,

attempts were made on his behalf to tamper with evidence. In

view of these facts and circumstances respondent 1 was not

entitled to bail if the seriousness of the matter was realized

and a judicious approach was made....”

70.In Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai

Makwana (Koli) and others

15

, it is held that:-

“20. The first aspect of the case which stares in the face is the

singular absence in the judgement of the High Court to the

nature and gravity of the crime. The incident which took place

on 9 May 2020 resulted in five homicidal deaths. The nature

of the offence is a circumstance which has an important

bearing on the grant of bail. The orders of the High Court are

conspicuous in the absence of any awareness or elaboration of

the serious nature of the offence. The perversity lies in the

failure of the High Court to consider an important

circumstance which has a bearing on whether bail should be

granted.”

14. (1987) 2 SCC 684

15. 2021 (6) SCALE 41

27

CONTENTIONS OF THE STATE:

71. Sri Vinod Kumar Shahi, learned A.A.G. assisted by Sri

Prachish Pandey, learned AGA for the State has reiterated the

arguments tendered by learned counsel for the victim/complainant and

has stated that in the peculiar circumstances, there are three first

informants including the victim, who is being represented through his

advocate.

72.Learned A.A.G. has stated that the present clash between the

accused persons and the farmers was not a face to face one, rather the

applicant and the other accused persons came from the back at a fast

speed and crushed five innocent persons to death and injured thirteen

others.

73.Learned A.A.G. has further stated that the point raised by the

defence that no one sustained any gunshot injuries, carries no weight

because the first informant Jagjeet Singh himself has stated that he

was not an eye witness to the incident and as the FIR is not an

encyclopedia of events, it cannot be said that the prosecution version

stands falsified.

74.Learned A.A.G. has further argued that the carrying of kirpans

by a Sikh is by his religious belief, and some of the farmers were

carrying lathis, which does not fall within the category of deadly

weapons, and which categorically proves that the innocent farmers

were not the aggressors at all. The autopsy report corroborates the

modus operandi of the applicant and other accused persons as five

innocent persons were put to death in a most brutal, barbaric and

gruesome manner.

75.Learned A.A.G. has also stated that in compliance of the order

of the Apex Court, all the witnesses have been provided protection by

the State Government and despite that, the applicant has threatened

and even got the two witnesses assaulted. The charge sheet filed by

28

the SIT is elaborate and well documented and the applicant was found

the main perpetrator of the events that took place on 3.10.2021.

76.Sri V.K. Shahi, learned A.A.G. has submitted that on the

directions of the Supreme Court, the investigation of the present case

as well as of F.I.R. No.220 of 2021 was conducted by the SIT under

the monitoring of Justice (Retd.) Rakesh Kumar Jain, Hon'ble Judge,

Punjab & Haryana High Court and supervised by S.B. Shiradkar,

A.D.G., Intelligence Headquarter, Nanded, Maharashtra with the

members (1) Ms. Padmaja Chauhan, I.G., I.P.S., (2) Dr. Preetinder

Singh, D.I.G., IPS.

77.Learned A.A.G. further submitted that in the said incident, by

the vehicle of the applicant and his followers, about eighteen

protesters were crushed of which four protesting farmers namely,

Nakshatra Singh, Daljeet Singh, Lavpreet Singh, Gurvinder Singh and

one journalist Raman Kashyap had expired and thirteen other persons

were injured.

78.Learned A.A.G. has submitted that the statements of all the

injured persons were recorded during the course of investigation u/s

161 Cr.P.C. The statements of other eye witnesses were also recorded

and they have supported the prosecution story. He further submitted

that the statements under Section 164 Cr.P.C. were also recorded of

few of the witnesses and all the witnesses of the fact have supported

the prosecution version that the applicant reached the spot with his

vehicle followed by other vehicles at a high speed and barged into

them and crushed the protesters. Thereafter, he had run away firing as

cover. Learned A.A.G. has also submitted that the statements of the

doctors, who conducted the autopsy of the body of the deceased

persons as well as medico legal examination of injured persons, were

also recorded, in which, all of them have categorically stated that

injuries found on the body of the deceased persons may have been

29

caused by hitting from a vehicle. Sri Shahi also submitted that in the

video clip, it is also found that vehicles are reaching the spot.

79.Learned A.A.G. has placed much reliance on the FSL report of

the weapons of the accused persons, which categorically indicates that

the said weapons were used. He has lastly submitted that in the

incident, involvement of 17 persons was found along with the

applicant, out of which, three persons, namely, Hari Om Mishra,

Subham Mishra and Shyam Sunder were killed by the crowd of the

protesters and after detailed investigation, charge sheet has been

submitted against rest of the 14 persons including the applicant.

CONCLUSION :

80.Had both the sides observed a bit of restraint, we would not

have seen the loss of eight invaluable human lives. As per the

arguments tendered by both the parties, five persons (four farmers and

one journalist) from the side of the first informant/victim are said to

have died in the incident, and three persons are said to have been put

to death from the side of the applicant. In addition to it, 13 persons

sustained injuries from the side of informant and 3 from the side of

applicant.

81.Both the sides have referred certain pictures and audio visuals

that were taken up from social media. The media has an indispensable

role in highlighting the matters pertaining to public utility at large.

The media is supposed to provide news to the society, but sometimes

we have seen that individual views are overshadowing the news thus

putting an adverse effect on truth. Of late, media is seen overstepping

upon the sanctity of judiciary in high profile criminal cases, as was

evident in the cases of Jessica Lal, Idrani Mukherjee and Aarushi

Talwar etc.

30

82.The three Judge Bench led by Chief Justice of India, R.M.

Lodha, found the issue to be very serious and even considered to

frame a few guidelines in order to balance the interest and rights of

the stake holders.

83.The vital difference between the convict and accused has to be

looked into by keeping at stake the cardinal principles of ‘presumption

of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’.

Media trial apart from taking up the investigation on its own leads to

forming public opinion against the suspect even before the court takes

cognizance of the case as a result the accused who should have been

presumed innocent is treated a criminal. The excessive publicity of the

suspect in the media before the trial in a court of law, either

incriminates a fair trial or results in characterizing the accused or

suspect as the one who has certainly committed the crime. The reason

the jury members were kept aloof of the access to media was obvious.

Classic examples of the menace are the cases of K.M. Nanawati and

O.J. Simpson.

84.In the case of Saibal Kumar Gupta and Ors. v. B.K. Sen and

Anr.

16

, the Supreme Court held that when there is an ongoing trial by

one of the regular tribunals of the country then trial by newspapers

must be prohibited. This is based upon the view that such action by

the newspaper of doing an investigation tends to interfere with the

course of justice, whether the investigation tends to prejudice the

accused or the prosecution.

85.Now the problem has been multiplied by the electronic and

social media especially with the use of tool kits. At various stages and

forums, it has been seen that ill-informed and agenda driven debates

are being undertaken by media running Kangaroo Courts.

86.It is true that hearing of the bail plea cannot be converted into a

mini trial, but owing to the circumstances, the parties i.e. the

16. (1961) 3 SCR 460

31

applicant, the victim and the State have been heard at length. It is also

very true that after the amendment in the Cr.P.C. and by adding

Section 2 (wa) and proviso to Section 24(8) the rights of the victim

are on a higher pedestal than that of the complainant provided under

Section 301 Cr.P.C.

87.The District Administration had issued a proclamation under

Section 144 Cr.P.C., which was in effect on the date of incident and

was equally applicable to not only the applicant and his associates, but

also to the agitating/protesting farmers. The same has not been

followed by either of the parties.

88.The change of route of the Chief Guest was an open secret, as it

was known to one and all including the applicant and the protestors.

89.The trial has not yet started as charge have not been framed, so

the ambiguity in sections, if any, in the final report can be corrected at

the stage of framing of charge.

90.The controversy of some sections not finding mentioned in the

bail rejection order of the Court of Sessions has already been put to

rest by this Court vide order dated 18.1.2022, and it does not require

fresh adjudication.

91.Several inconsistencies, embellishments and improvements

have been referred by the defence in the statements of witnesses to the

site plan, which cannot be delved into at this stage, rather are to be

seen by the trial court concerned.

92.It is also true that the prosecution cannot claim parity as a right

to the co-accused whose bail applications have been rejected by this

Court, but yet the presence of the three vehicles at the spot from one

of which the applicant was seen coming out is a crucial circumstance

weighing against the applicant. The said Thar vehicle was registered

in the name of father of the applicant and he was seen in the said

vehicle recovered from the spot, although the applicant was not seen

32

driving it. There are two FIRs lodged by the witnesses having being

threatened. The cross-version to the present case does not help the

accused.

93.Taking into consideration the complicity of the applicant, there

being apprehension of the witnesses being influenced, severity of

punishment as drawn from the nature and gravity of the accusations,

after taking due consideration of the submissions of the parties, and

the settled case law of Alister Anthony Pareira (supra), without

expressing any opinion on the merits of the case, I do not find it a fit

case for bail.

94.The bail application of the applicant-Ashish Mishra @ Monu

is hereby rejected.

95.It is clarified that the observations made herein are limited to

the facts brought in by the parties pertaining to the disposal of bail

application and the said observations shall have no bearing on the

merits of the case during trial.

Order Date :- 26.7.2022

Shalini

(Justice Krishan Pahal)