Vimlesh @ Kullu vs State Of U.P. And Another
2022 Latest Caselaw 20204 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 295 of 2022
 

 
Appellant :- Vimlesh @ Kullu
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Vinod Kumar Pandey
 
Counsel for Respondent :- G.A.,Ganesh Shankar Patel
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Vinod Kumar Pandey, learned counsel for the appellant, Shri Om Prakash Dwivedi, learned A.G.A. for the State and perused the material placed on record. Notice has been given to the second respondent, but none appears on his behalf. Service of notice is taken on record.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Vimlesh @ Kullu to set aside the impugned order dated 4.1.2022, whereby the Special Judge, SC/ST Act, Allahabad has rejected the bail application No. 7502 of 2021 of the appellant moved by him in Case Crime No. 113 of 2021, under Sections 304, 328, 272 IPC, Section 3(2)V of SC/ST Act and Section 60A/63 of Excise Act, Police Station Handia, District Prayagraj.

Brief facts of the case are that the first information report dated 16.03.2021 has been lodged by one Munne Lal Bhartiya against four named accused persons and one unknown person stating therein that on 14.03.2021 at about 8:00 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 go information that co-accused Vimlesh Devi and other co-accused prepared and sold adulterated liquor.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case during investigation. The appellant is not named in the first information report. It is further submitted that without collecting the evidence against the appellant, charge-sheet has been submitted. It is further submitted that no incriminating article has been recovered from the possession of appellant. The alleged recovery of quarter of 37 adulterated liquor is made from the possession of co-accused Vimlesh Devi 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 alleged recovery, which was made from possession of co-accused Vimlesh Devi, was not a recovery under Section 27 of the Evidence Act. It is further submitted that appellant has criminal history of three cases, which has been explained in para 8 of the affidavit.

It is further submitted that co-accused Vinod Bhartiya, Shailesh Jaiswal @ Kashi, Vikas jaiswal @ Vikki, Sanjay Jaiswal @ Sanjeev Kumar have been granted bail by means of an order dated 27.04.2022, 2.11.2022 and 28.11.2022 passed by this Court in Criminal Misc. Bail Application No. 3495 of 2022 and Criminal Appeal Nos. 1997 of 2022 & 516 of 2022. It is further submitted that the appellant is languishing in jail since 1.9.2021.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged 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. 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) The appellant is not named in the first information report. He has been implicated in the present case on the basis of confessional statement of co-accused Shivbhushan @ Kariya.

(b) No incriminating article has been recovered from the possession of appellant.

(c) Co-accused Vinod Bhartiya, Shailesh Jaiswal @ Kashi, Vikas jaiswal @ Vikki, Sanjay Jaiswal @ Sanjeev Kumar have been granted bail by means of an order dated 27.04.2022, 2.11.2022 and 28.11.2022 passed by this Court in Criminal Misc. Bail Application No. 3495 of 2022 and Criminal Appeal Nos. 1997 of 2022 & 516 of 2022.

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 criminal appeal is allowed and impugned order dated 4.1.2022 is set aside.

Let appellant/applicant, Vimlesh @ Kullu 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 appellant 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 appellant shall not pressurize/intimidate the prosecution witnesses.

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

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

(vi) The appellant 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 appellants 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 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.

Order Date :- 7.12.2022

T. Sinha