Hariom And Another vs State Of U.P. Through Secretary ...
2022 Latest Caselaw 1328 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1801 of 2022
 

 
Applicant :- Hariom And Another
 
Opposite Party :- State Of U.P. Through Secretary Home At Lucknow
 
Counsel for Applicant :- Mukesh Chandra Gupta,Sanjay Singh,Shubham Prakash Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Sanjay Singh, learned counsel for the applicants, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicants Hariom and Bantu @ Bhartendu under Section 439 of the Code of Criminal Procedure, with a prayer to release them on bail in Case Crime No. 596 of 2021 for offence punishable under Sections 272, 273, 304 of the Indian Penal Code and Section 60(A) Excise Act, registered at Police Station Tajganj, District Agra, during pendency of the trial, after rejecting the bail application of the applicants by Special Judge (S.C./S.T. Act), Agra vide order dated 12.11.2021.

Brief facts of the case are that the First Information Report dated 26.8.2021 has been lodged by father of the deceased Sunil against five named persons excluding the applicants stating that son of the first informant purchased liquor on 22.8.2021 from co-accused Kishan Devi @ Kishni. After drinking the liquor along with Tara Chand, they started vomiting and both have died. Co-accused Kishan Devi @ Kishni purchased the adulterated liquor from one Dara Singh. Co-accused Sanuj Bansal was the licensee of country made liquor. Co-accused Kamlesh was salesman of co-accused Sanuj Bansal. Co-accused Kishan Devi @ Kishni sold the adulterated illicit liquor to the persons.

Before lodging of the first information report, inquest of the bodies of deceased Sunil and Tara Chand was conducted on 24.8.2021 & 23.8.2021 respectively. Postmortem of both the dead bodies was conducted on 24.8.2021. As per postmortem report of Sunil, viscera was preserved and in FSL report, Ethyl Alcohol and Methyl Alcohol were found. As per postmortem report of Tara Chand, cause of death was Septicemia shock as a result of chronic disease. After recording the statements of prosecution witnesses, charge sheet has been submitted against the applicants and five named and five unknown persons on 23.10.2021.

Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case due to ulterior motive. It is further submitted that the applicants are not named in the first information report. Name of the applicants surfaced in the confessional statement of co-accused Dara Singh. It is further submitted that no incriminating article has been recovered from the possession of the applicants as well as co-accused Dara Singh. It is further submitted that there is no evidence to whisper about the complicity of the applicants in the present case. The applicants have no concern or relation with the co-accused persons. It is further submitted that co-accused Bachchu Singh and Sanuj Bansal have been granted bail by the Coordinate Benches of this Court vide orders dated 9.2.2022 & 28.3.2022 in Criminal Misc. Bail Application Nos. 49419 of 2021 & 46186 of 2021 respectively. He has next argued that the applicants have explained criminal history of nine cases in the supplementary affidavit filed in support of the bail application. In the all the said cases, the applicants are on bail. It is further submitted that if the applicants are released on bail, they shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicants and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicants are released on bail, they will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) The applicants are not named in the first information report;

(b) Name of the applicants surfaced in the confessional statement of co-accused Dara Singh;

(c) No incriminating article has been recovered from the possession or pointing out of applicants as well as co-accused Dara Singh;

(d) Co-accused Bachchu Singh and Sanuj Bansal have been granted bail by the Coordinate Benches of this Court vide orders dated 9.2.2022 & 28.3.2022 in Criminal Misc. Bail Application Nos. 49419 of 2021 & 46186 of 2021 respectively.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, their role and involvement in the offence, their involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicants, Hariom and Bantu @ Bhartendu be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicants shall not directly or indirectly make any 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 to any police officer or tamper with the evidence.

(ii) The applicants shall not pressurize/intimidate the prosecution witnesses.

(iii) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

(iv) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel.

(vi) The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicants are deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicants, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 25.4.2022

CS/-