Ashish Paswan v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.1315 of 2022 Arising Out of PS. Case No.-248 Year-2020 Thana- ARA NAGAR District- Bhojpur ====================================================== Ashish Paswan, Son of Late Pradeep Paswan, R/O Village- Gausganj, P.S.- Ara Nagar, District- Bhojpur.

... ... Appellant

Versus

The State of Bihar ... ... Opposite Party ====================================================== Appearance :

For the Appellant :

Mr. Vipin Kumar, Advocate For the State :

Mr. Binay Krishna, Spl.P.P.

For the Informant :

Dr. Kamaldeo Sharma, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL ORDER 13-10-2023 Heard learned counsel for the appellant, learned counsel for the informant and learned Spl.P.P. for the State.

2. A counter affidavit has been filed on behalf of the Director General of Police. In paragraphs '7' and '8' of the counter affidavit, it is stated that the absconder accused Ashish Paswan was arrested by Jharkhand Police in connection with Adityapur P.S. Case No. 243 of 2023 of Saraikela district under Section 392 IPC. After obtaining production warrant from the competent court, he has been remanded in Ara Town P.S. Case No. 07 of 2023 and in Ara Town P.S. Case No. 248 of 2020 on 26.09.2023.

3. This appeal has been preferred for setting aside of the order dated 15.04.2021 passed in SC/ST (B.P. No. 1550 of 2021) arising out of Ara Town P.S. Case No. 248 of 2020

2/8 registered for the offence punishable under Sections 302, 387, 34 of the Indian Penal Code, Section 27 of the Arms Act and Section3(2) of the Scheduled Castes and Scheduled Tribes Act by learned 1st Additional Sessions Judge-cum-Special Judge, SC/ST Act, Bhojpur, Ara whereby and whereunder the prayer for regular bail of the appellant has been rejected. The appellant has got nine criminal antecedents as stated in paragraph '3' of the appeal. He is in custody since 13.07.2020.

4. It appears that earlier he had moved this Court in Cr. Appeal (SJ) No. 3301 of 2021 for grant of regular bail in the present case. This Court having considered the submissions on behalf of the appellant, vide its order dated 04.10.2021, rejected the prayer for regular bail of the appellant. The operative part of the order dated 04.10.2021 reads as under:- "At the outset, Mr. P.K. Shahi, learned Senior Counsel representing the appellant submits that the appellant has filed a supplementary affidavit stating therein that he has got nine criminal antecedents and that in all those cases he is on bail except Sl. no. 9. To that extent paragraph '3' of this application stands modified.

Heard Mr. P.K. Shahi, learned Senior Counsel assisted by Mr. Shankar Kumar, learned Advocate for the appellant and Mrs. Usha Kumari 1, learned Special P.P. for the State.

The appellant in the present case is seeking setting aside of the order dated 15.04.2021 passed in

3/8 SC/ST (B.P. No. 1550 of 2021) arising out of Ara Town P.S. Case No. 248 of 2020 registered for the offence punishable under Sections 302, 387, 34 of the Indian Penal Code, Section 27 of the Arms Act and Section3(2) of the Scheduled Castes and Scheduled Tribes Act by learned 1st Additional Sessions Judge-cum-Special Judge, SC/ST Act, Bhojpur, Ara whereby and whereunder the prayer for regular bail of the appellant has been rejected. He is in custody since 13.07.2020.

As per the prosecution story, the informant got an information from one Dipak Paswan that Ashish Paswan (the appellant), Avinash Paswan, Ankit Paswan, Sarvjeet Paswan, Amarjeet Paswan, Ram Parwesh Paswan, Chhotu Yadav as also two other unknown persons have shot at Mithun Paswan near Janki Temple. It is alleged that when the informant rushed there and saw the injured Mithun Paswan lying in the pool of blood, the injured Mithun Paswan who happened to be the son of the informant told that Ashish Paswan (this appellant), Avinash Paswan, Amarjeet Paswan, Sarvjeet Paswan, Ankit Paswan, Ram Pravesh Paswan, Chhotu Yadav and two unknown persons had shot at him. While taking him to the hospital the injured succumbed to his injuries and died.

Learned Senior Counsel for the appellant submits that the post-mortem report discloses nine entry wounds but the allegations against the appellant and other co-accused are general and omnibus.

4/8 Paswan and Chotu Yadav have been granted bail by learned coordinate Benches of this Court in Cr. Appeal (SJ) No. 2469 of 2021, Cr. Appeal (SJ) No.1385 of 2021, Cr. Appeal (SJ) No. 2545 of 2021 1956 of 2021 and Cr. Appeal (SJ) No. 1324 of 2021 respectively.

Learned Senior Counsel has, therefore, made submissions based on principles of parity. It is his submission that the case of the appellant cannot be distinguished from those who have been granted bail by learned coordinate Benches of this Court. Mrs. Usha Kumari 1, learned Special P.P. for the State has opposed the prayer for bail of the appellant. Learned Special P.P. submits that in course of investigation, the allegations made by the informant in the F.I.R. have been supported by an eye witness namely Dipak Paswan, son of Raju Paswan whose statement is recorded in paragraph '24' of the case diary. Learned A.P.P. further submits that the cases in which bails have been granted by learned coordinate Benches of this Court and the considerations therein are distinguished inasmuch as it would appear from the orders placed before this Court that the statement of the eye witness present in paragraph '24' of the case diary were not brought to the notice of the learned coordinate Benches of this Court.

It is further submitted that recently in the case of Shri Mahadev Meena Vs. Raveen Rathore and Another passed in Cr. Appeal No. 1089 of 2021 (arising out of SLP (Criminal) No. 4072 of 2021 decided on 27th of September, 2021, the Hon'ble Apex Court has observed on the principle of parity and reference may be made to paragraph 13

5/8 of the judgment which reads as under:

"13. Having analyzed prima facie the circumstances in which the offence was committed and the nature of the allegations, it will be useful to refer to the precedents of this Court governing the grant of bail. A two-judge Bench of this Court in Ram Govind Upadhyay v. Sudharshan Singh has listed the considerations that govern the grant of bail without attributing an exhaustive character to them. This Court has observed:

"4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

This Court has further elucidated on the power of the court to interfere with an order of bail in the

6/8 following terms:

"3. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained."

The above principles have been reiterated by a two judge Bench of this Court in Prasanta Kumar Sarkar v. Ashis Chatterjee:

"9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. 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.

In Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, a two judge Bench of this Court of which one of us (Justice DY Chandrachud) was a part, has held that the High Court while granting bail must focus on the role of the accused in deciding the aspect of parity. This Court observed:

7/8 "26....The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused.

Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."

Learned A.P.P. submits that it is a case of gruesome murder of the son of the informant who suffered nine entry wounds and the appellant has been specifically named in the F.I.R. The submission is that the appellant has got nine criminal antecedents further indicates the involvement of the appellant in so many cases and, as such, his release at this stage is likely to result in tampering with the evidence in various ways.

Having regard to the facts and circumstances of the casand the materials placed before this Court, this Court agrees with the submissions of learned A.P.P. for the State for the reasons that firstly the statement of the eye witness as appearing in paragraph '24' of the case diary has not been brought to the notice of the learned coordinate Benches of this Court in the case of the coaccused who have been granted privilege of bail, therefore, principle of parity cannot be applied and secondly there being specific allegation against the appellant getting further supported from the nine entry wounds noticed in the postmortem report and then the conduct of the appellant in having nine criminal antecedents which gives an apprehension to the prosecution that if released on bail at this stage he has got potential to threaten the witnesses and that may result in tampering with the evidence and

8/8 interfering with the course of trial, in the circumstances, this Court is not inclined to interfere with the impugned order. This appeal fails.

Let the trial be expedited."

5. Learned counsel for the appellant is unable to point out any material to take a different view of the matter at this stage.

6. This Court finds that in fact the conduct of the appellant in fleeing away from police custody on 03.01.2023 and thereafter his arrest after hectic efforts made by police upon direction of this Court would be an additional factor to be taken into consideration. In the opinion of this Court, the appellant does not deserve privilege of bail.

7. No infirmity may be found with the impugned order.

8. This appeal is dismissed.

(Rajeev Ranjan Prasad, J) SUSHMA2/- U T