- (1.) POONAM Srivastava, J. Heard Sri Daya Shankar Mishra, learned Counsel for the applicant and learned A. G. A. for the State.
(2.) COUNTER, rejoinder, supplementary counter and supplementary rejoinder affidavits have been exchanged between the parties which are on record. The submission on behalf of the applicant is that four persons were done to death in the incident and there are as many as 12 accused. According to the First Information Report, the occurrence has taken place on 3-7-2004 at 11. 10 a. m. The deceased and his associates reached the PWD Office, Ballia to purchase tender forms in Tata Sumo Vehicle No. U. P. 60-B-0775, Ambassador No. UP 60-L-0232 and Qualis No. UP 60d-6447. The accused including the present applicant were present in the PWD campus. As soon as the vehicles reached the place of occurrence, the accused started indiscriminate firing from their respective weapons. It has been specified that the deceased Daya Shankar received injuries from the rifle of Kaushal Chaubey, the deceased Arvind Chaubey received injuries from the rifle of Ajit Chaubey and Anshuman Chaubey. The deceased Akhilesh Singh died after receiving injuries from the pistol of Chandrachurn Chaubey alias Shera. The deceased Satya Prakash received injuries from the fire- arm of the applicant and Anoop Chaubey. On the basis of this allegation and the injuries shown in the post-mortem report, it has emphatically been argued that the injuries received by each of the deceased including Satya Prakash is by a single shot and, therefore, the specific assertion made in the First Information Report is false. The witness cannot say with an absolute precision as to whose shot hit the individual deceased. The present applicant is alleged to have caused fire-arm injuries to deceased Satya Prakash which resulted in his death. Perusal of the post-mortem report shows that there are two fire- arm injuries on Satya Prakash, one wound of entry and the other wound of exit. The injury No. 2 is lacerated injury over Chin. In the circumstance, it is submitted that the specific allegation that the present applicant and Anoop caused fire-arm injury to the deceased Satya Prakash stands belied. The second submission is that the co-accused Chandrachurn Chaubey has received injuries in the incident. His medical report is annexed as Annexure-7 to the bail application. The injuries are on vital part. In fact the fire was opened by the deceased and his associates and the injuries were received on the side of the accused, and the deceased received injuries as a consequence of their indiscriminate firing. The accused Anshuman Chaubey also died on the same day and a cross case was registered on the basis of an application under Section 156 (3) Cr. P. C. The cross case was registered at case Crime Nos. 83 and 84 of 1984, Police Station Phephna. In fact the pallets etc. recovered go to show that the injuries were caused by fire-arms by the complainant and the deceased themselves and not by the accused. It is also submitted that the investigation by the Investigating Agency in respect of the cross case was not carried out properly, as a result final report was submitted in the cross case. The stand of the prosecution in respect of the report regarding death of Anshuman Chaubey is to the effect that he was killed in a police, is encounter, is absolutely baseless. In fact Anshuman Chaubey had gone to see Chandrachurn Chaubey in the hospital where he was killed by the opposite party and the police has wrongly shown it to be a case of police encounter. It has been shown that Anshuman Chaubey was killed by public who had assembled at the relevant time. The mother of Anshuman Chaubey, Smt. Asha Chaubey moved an application on 5-7-2004 to the Principal Secretary (Home) State of U. P. bringing to notice that Anshuman Chaubey aged about 15 years was a student of Allahabad University and he had gone to see his brother Chandrachurn Chaubey who was admitted in the district hospital, Ballia. Kamal Singh, Ajai Singh, Ram Singh, the then Station Officer Police Station Reoti, Sri Ram Singh, a relative of Kamal Singh forcibly got him into the police jeep and carried him to the Police Station. It is only with a view to save their skin the police has taken a false stand of police encounter. The Secretary PWD U. P. Government Lucknow vide letter dated 10-7-2004 sent a letter to the Secretary regarding the murders and irregularities in the contract. Consequently an order was passed transferring the investigation to CBCID. This Court vide judgment and order dated 30-8-2005, in Criminal Misc. Writ Petition No 3296 of 2005 challenging the transfer of investigation, dismissed the writ petition and also quashed the final report accepted in crime Nos. 83 and 84 of 2004 Police Station Phephna, District Ballia. It was directed that the said final report to be non-existent and thereafter at present, the investigation is being carried out. It is also submitted by Sri D. S. Mishra on the basis of a letter issued by the PWD, Ballia and also Annexure SRA-5, that on the date and time of occurrence, the deceased Akhilesh Singh had purchased a number of tenders in the forenoon on the date of occurrence and, consequently the case of the prosecution that indiscriminate firing was resorted by the accused when the deceased got down from their respective vehicles, stands completely belied. An order passed by the Human Rights Commission dated 1-7-2005 is also placed before me to show that the police while submitting a final report in respect of the death of the accused Anshuman Chaubey case crime Nos. 83 and 84 of 2004 has not acted impartially and, therefore, further investigation was held to be necessary. The order directing further investigation was also challenged by Upendra Singh in Criminal Misc. Writ Petition No. 3296 of 2005 annexed with the supplementary affidavit dated 7-10-2005 which stand rejected. On the basis of the aforesaid arguments, Counsel for the applicant states that the present applicant is entitled for bail. Besides the bail application is being pressed on the ground of parity. The co-accused Kamla Kant Chaubey, Munna Chaubey, Avanish Chaubey and Arvind Chaubey have been granted bail. Learned A. G. A. has emphatically disputed the arguments of the Counsel for the applicant. Supplementary counter-affidavit has also been filed. It is submitted that it is a broad day light occurrence. Four persons have been done to death. The accused have specifically been named in the First Information Report. The fact that final report was submitted regarding cross case in winch further investigation is being carried out, is of no consequence and cannot be a ground to enlarge the applicant on bail. The co-accused who have been granted bail, have not been assigned specific role and, therefore no parity can be granted to the present applicant.
(3.) AFTER taking into consideration the arguments of the Counsel for the applicant and learned A. G. A. , assuming that the injuries caused to the deceased are as a result of single shot by the accused and narration of the First Information Report viz-a-viz causing injury to the deceased Satya Prakash, it cannot be ascertained at this stage conclusively which of the assailant caused the fatal injury to the deceased Satya Prakash. Perusal of the First Information Report shows that it has specifically been mentioned that the present applicant alongwith one other co-accused opened fire at the deceased Satya Prakash who died on the spot alongwith three others. The alleged tainted investigation in respect of case crime Nos. 83 and 84 of 2004 is also no ground for grant of bail to the present applicant. The circumstances relating to the purchase of tender forms etc. are concerned and also the time of occurrence as alleged in the First Information Report and the time shown by PWD department in respect of purchase of the said tender forms are all matters of trial after the evidence is recorded. I am not inclined to make an assessment of the documentary evidence at this stage. In view of what has been discussed above. I do not find it a fit case for grant of bail. The bail application is accordingly rejected. Application rejected. .;