High Court · 2025

3. Learned senior counsel appearing on behalf of the applicant submits that however, applicant is named in the FIR along with nine others but it reflects that with the aid of Section 61(2) BNS he has been made accused in the present matter.

4. It is next submitted that as per allegation made in the FIR on

2.10.2024, i.e., about a month before applicant and co-accused Pooran Lal threatened the deceased and, therefore, he hatched the conspiracy. He next submits that except above there is no other allegation against the applicant in the FIR of the present case.

5. He further submits that as per prosecution during investigation it was found that applicant also had conversation with co-accused Santosh on 6.11.2024, i.e., next day from the date of incident. He next submits that except above evidence there is no other evidence against the applicant on record.

6. He further submits that merely on the basis of above evidence at this stage it cannot be said that applicant hatched the conspiracy.

7. He further submits that enmity between both the sides are admitted and unfortunately earlier also the younger brother of the deceased was murdered but in that case applicant was not an accused and only due to previous enmity he has been roped in the present matter with the aid of Section 61(2) BNS.

8. He further submits that however apart from the present case applicant is also having criminal history of two other cases but his criminal history has been explained in pargraph-37 of the affidavit filed in support of the instant bail application and both the above cases relate to minor offences.

9. He further submits that in the present matter applicant is in jail since 13.11.2024, i.e., for the last more than five months.

10. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submitted that earlier also applicant sides committed the murder of the brother of the informant in which relatives of the applicant are facing trial and about one month before applicant and co-accused Pooran Lal also threatened the deceased of this case, therefore, it cannot be said that there is no cogent evidence of conspiracy against the applicant.

11. They further submitted that in the earlier case of murder deceased was the informant of the case and, therefore, he was the prime witness of that case and, therefore, it is a case in which witness of a murder case has been eliminated and applicant hatched the conspiracy for that and, therefore, considering all these facts, he should not be released on bail.

12. Learned AGA further pointed out that actually apart from the present case applicant is having criminal history of three other cases and criminal history of only two cases has been explained by the applicant in the instant bail application but he fairly conceded that unexplained case also relates to minor offence.

13. I have heard learned counsel for the parties and perused the record of the case.

14. However, it reflects that deceased of the present matter was the informant of one another murder case in which his brother was murdered but admittedly in that case applicant was not an accused.

15. Further, it is a case of direct evidence and as per the prosecution co-accused Sipin, Vipin and Gaurav by causing fire arm injuries to the deceased committed his murder and it reflects that applicant has been made accused in the present matter with the aid of Section 61(2) BNS for hatching conspiracy and as per prosecution for conspiracy there are following two circumstances against the applicant:- (i) about a month before applicant and co- accused Pooran Lal threatened the deceased; (ii) after the incident, i.e., on 6.11.2024 applicant had conversation with co-accused Santosh.

16. As far as circumstance no.1 is concerned, however, there is allegation that about a month before applicant threatened the deceased along with co-accused Pooran Lal but except bald and verbal allegation made in the FIR, there is no other evidence in this regard on record. It reflects that in this regard no complaint was made by the deceased to the Police.

17. Further, as far as second circumstance is concerned, admittedly applicant is known to co-accused Santosh and if he had conversation with him next day from the date of incident then merely on this basis, in view of this Court, at this stage prima facie it cannot be said that applicant hatched the conspiracy.

18. Further, however, apart from the present case applicant is also having criminal history of three other cases and his criminal history of only two cases has been explained in the instant bail application but it reflects that all the three cases were of minor offences.

19. Further, in the present matter applicant is in jail since

13.11.2024, i.e., for the last more than five months.

20. Further, law is settled that ordinarily if otherwise case of bail is made out then merely on the basis of criminal antecedent bail application of an accused should not be withheld.

21. Further, law is also settled that unless proven guilty, an accused is deemed to be innocent and bail application of an accused should not be dismissed for punitive purpose.

22. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

23. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

24. Let the applicant-Brajesh Kumar @ Birju be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) 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 or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

25. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

26. 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 :- 7.5.2025 SKM SHRAVANA KUMAR MISHRA High Court of Judicature at Allahabad

3. Learned senior counsel appearing on behalf of the applicant submits that however, applicant is named in the FIR along with nine others but it reflects that with the aid of Section 61(2) BNS he has been made accused in the present matter.

4. It is next submitted that as per allegation made in the FIR on

2.10.2024, i.e., about a month before applicant and co-accused Pooran Lal threatened the deceased and, therefore, he hatched the conspiracy. He next submits that except above there is no other allegation against the applicant in the FIR of the present case.

5. He further submits that as per prosecution during investigation it was found that applicant also had conversation with co-accused Santosh on 6.11.2024, i.e., next day from the date of incident. He next submits that except above evidence there is no other evidence against the applicant on record.

6. He further submits that merely on the basis of above evidence at this stage it cannot be said that applicant hatched the conspiracy.

7. He further submits that enmity between both the sides are admitted and unfortunately earlier also the younger brother of the deceased was murdered but in that case applicant was not an accused and only due to previous enmity he has been roped in the present matter with the aid of Section 61(2) BNS.

8. He further submits that however apart from the present case applicant is also having criminal history of two other cases but his criminal history has been explained in pargraph-37 of the affidavit filed in support of the instant bail application and both the above cases relate to minor offences.

9. He further submits that in the present matter applicant is in jail since 13.11.2024, i.e., for the last more than five months.

10. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submitted that earlier also applicant sides committed the murder of the brother of the informant in which relatives of the applicant are facing trial and about one month before applicant and co-accused Pooran Lal also threatened the deceased of this case, therefore, it cannot be said that there is no cogent evidence of conspiracy against the applicant.

11. They further submitted that in the earlier case of murder deceased was the informant of the case and, therefore, he was the prime witness of that case and, therefore, it is a case in which witness of a murder case has been eliminated and applicant hatched the conspiracy for that and, therefore, considering all these facts, he should not be released on bail.

12. Learned AGA further pointed out that actually apart from the present case applicant is having criminal history of three other cases and criminal history of only two cases has been explained by the applicant in the instant bail application but he fairly conceded that unexplained case also relates to minor offence.

13. I have heard learned counsel for the parties and perused the record of the case.

14. However, it reflects that deceased of the present matter was the informant of one another murder case in which his brother was murdered but admittedly in that case applicant was not an accused.

15. Further, it is a case of direct evidence and as per the prosecution co-accused Sipin, Vipin and Gaurav by causing fire arm injuries to the deceased committed his murder and it reflects that applicant has been made accused in the present matter with the aid of Section 61(2) BNS for hatching conspiracy and as per prosecution for conspiracy there are following two circumstances against the applicant:- (i) about a month before applicant and co- accused Pooran Lal threatened the deceased; (ii) after the incident, i.e., on 6.11.2024 applicant had conversation with co-accused Santosh.

16. As far as circumstance no.1 is concerned, however, there is allegation that about a month before applicant threatened the deceased along with co-accused Pooran Lal but except bald and verbal allegation made in the FIR, there is no other evidence in this regard on record. It reflects that in this regard no complaint was made by the deceased to the Police.

17. Further, as far as second circumstance is concerned, admittedly applicant is known to co-accused Santosh and if he had conversation with him next day from the date of incident then merely on this basis, in view of this Court, at this stage prima facie it cannot be said that applicant hatched the conspiracy.

18. Further, however, apart from the present case applicant is also having criminal history of three other cases and his criminal history of only two cases has been explained in the instant bail application but it reflects that all the three cases were of minor offences.

19. Further, in the present matter applicant is in jail since

13.11.2024, i.e., for the last more than five months.

20. Further, law is settled that ordinarily if otherwise case of bail is made out then merely on the basis of criminal antecedent bail application of an accused should not be withheld.

21. Further, law is also settled that unless proven guilty, an accused is deemed to be innocent and bail application of an accused should not be dismissed for punitive purpose.

22. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

23. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

24. Let the applicant-Brajesh Kumar @ Birju be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) 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 or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

25. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

26. 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 :- 7.5.2025 SKM SHRAVANA KUMAR MISHRA High Court of Judicature at Allahabad