Vinod Bhartiya vs State Of U.P.
2022 Latest Caselaw 1570 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3495 of 2022
 

 
Applicant :- Vinod Bhartiya
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pramod Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned counsel for the applicant has filed supplementary affidavit, which is taken on record.

Heard Sri Pramod Kumar Srivastava, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Vinod Bhartiya under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 113 of 2021 for offence punishable under Sections 304, 328 and 272 of the Indian Penal Code, registered at Police Station- Handia, District- Prayagraj, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (S.C./ S.T. Act/ Additional Sessions Judge, Allahabad vide order dated 20.12.2021.

Brief facts of the present case are that the first information report dated 16.03.2021 has been lodged by one Munney Lal Bhartiya against the applicant and other three named persons and one unknown persons stating therein that on 14.03.2021 at about 08:00 P.M. first informant and one Buchche Kanaujia purchased a quarter of liquor from the house of the co-accused Vimlesh Devi and after drinking wine first informant started feeling dizzy and Buchche's health got very bad. He got information that co-accused Vimlesh Devi and other co-accused prepare and sell adulterated liquor.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that without collecting any evidence against the applicant, charge-sheet has been submitted against the applicant and other named co-accused persons. It is next submitted that no incriminating article has been recovered from the possession of the applicant, the alleged recovery of quarter of 37 adulterated liquor is made without complying the mandatory provision of Section 100 Cr.P.C. There is no independent/public witness of the alleged recovery. It is further submitted that no article has been recovered which is directly connect the case. It is next submitted that there is no recovery under Section 27 of the Evidence Act.

It is next submitted that criminal history of the applicant in three cases being Case Crime No. 114 of 2021, under Sections 419, 420, 467, 471 and 472 of I.P.C. and Section 60 of Excise Act; Case Crime No. 145 of 2021, under Section 60/63 of Excise Act and Section 420 of I.P.C. and Case Crime No. 528 of 2021 under Section 2/3 of Gangster Act, all were registered at P.S. Handia, District Prayagra have been duly explained in paragraph no. 10 of the affidavit filed in support of the bail application. It has also been submitted that co-accuseds, Dileep Patel, Kaptan Pandey, Brijesh Kushwaha and Vimlesh Devi @ Nanachi, having similar role, have already been enlarged on bail by the Coordinate Bench of this Court vide orders dated 08.12.2021, 14.12.2021, 15.12.2021 & 17.12.2021 in Criminal Appeal Nos. 3030 of 2021, 5020 of 2021, 4626 of 2021 & 2718 of 2021 respectively. He has next argued that the applicant has no previous criminal history and if the applicant is released on bail, he 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 applicant and submits that the allegations involved are very serious in nature and the delay in lodging the F.I.R. 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 applicant is released on bail, he 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) No incriminating article has been recovered from the possession of the applicant;

(b) There is no other recovery under Section 27 of the Evidence Act;

(c) Co-accused Dileep Patel, Kaptan Pandey, Brijesh Kushwaha and Vimlesh Devi @ Nanachi, having similar role have been granted bail by Coordinate Bench of this Court;

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, his role and involvement in the offence, his 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 applicant, Vinod Bhartiya be released on bail in the aforesaid case crime number on his 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 applicant 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 applicant shall not pressurize/intimidate the prosecution witnesses.

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

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

(vi) The applicant 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 applicant is 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/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, 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 applicant along-with 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 :- 27.4.2022

Ishan