Prince Jaiswal @ Bunty Jaiswal vs State Of U.P. And Another
2022 Latest Caselaw 15401 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 5661 of 2022
 

 
Appellant :- Prince Jaiswal @ Bunty Jaiswal
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Gaurav Kumar Singh,Navnath Pandey
 
Counsel for Respondent :- G.A.,Sarfaraz Ahmad
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Azad Shatru Pandey, Advocate holding brief of Sri Gaurav Kumar Singh, learned counsel for the appellant, Sri Anoop Kumar Singh, Advocate holding brief of Sri Sarfaraz, learned counsel on behalf of opposite party and Shri O.P. Dwivedi, learned AGA for the State and perused the material available 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 Prince Jaiswal @ Bunty Jaiswal to set aside the impugned order dated 16.05.2022, whereby the Special Judge, SC/ST Act/Additional Session Judge, Gorakhpur has rejected the bail application No. 1766 of 2022, (Prince Jaiswal @ Bunty Jaiswal Vs. State) of the appellant moved by him in Case Crime No. 62 of 2022, under Sections 363, 504, 506 IPC and Section 3(2)5 of SC/ST (P.A.) Act, Police Station Gagahan, District Gorakhpur.

Brief facts of the case is that the first information report dated 23.02.2022 has been logged by the mother of the victim stating that on 16.02.2022 the appellant enticed away her minor daughter aged about 15 years as inquired by a mobile phone number. On phone call the appellant abused with caste derogatory words to the son of the first informant.

After lodging of the first information report the statement of victim under section 161 Cr.P.C. has been recorded on 24.02.2022 and statement under section 164 Cr.P.C. has been recorded on 23.02.2022, and after recording the statements of the prosecution witnesses, charge sheet has been submitted against the appellant and the appellant was arrested on 19.04.2022.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per radiological report of the victim she was 17 years old at the time of incident and as per school leaving certificate of the alleged victim of Class 8th victim was about 15 years. It is further submitted that as per statement of victim recorded u/s 164 Cr.P.C. wherein she herself stated that she went from her house on her own free will and she had love affair with appellant. As per statement the victim has not supported the prosecution case. The appellant has no criminal history he is languishing in jail since 19.04.2022.

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. as well as learned counsel for the opposite party have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant. But they could not point out any material to the contrary. They further submit 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 case under section 363, 366 IPC is not made out against the appellant;

(b) The victim has not supported the prosecution case in her statement recorded under Section 164, Cr.P.C.;

(c) There is material contradiction/improvement between the statements of the victim recorded under Section 161 & 164, Cr.P.C. It would not be appropriate to discuss the same at this stage.

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, 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 criminal appeal is allowed and impugned order dated 16.05.2022 is set aside.

Let appellant/applicant, Prince Jaiswal @ Bunty Jaiswal 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 them 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 they 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 applicants 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/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 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 :- 1.11.2022/Arti