Sanjay Jaiswal @ Sanjeev Kumar vs State Of U.P. And Another
2022 Latest Caselaw 18875 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 516 of 2022
 

 
Appellant :- Sanjay Jaiswal @ Sanjeev Kumar
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Ashok Kumar Mishra,Akhilesh Kumar Mishra
 
Counsel for Respondent :- G.A.,Amit Kumar Tripathi
 

 
Hon'ble Sanjay Kumar Pachori,J.

Supplementary affidavit filed by learned counsel for the appellant, which is taken on record.

Heard Shri Akhilesh Kumar Mishra, learned counsel for the appellant, Shri Amit Kumar Tripathi, learned counsel for the respondent no. 2 and Shri Om Prakash Dwivedi, learned A.G.A. for the State and perused the material placed 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 Sanjay Jaiswal @ Sanjeev Kumar to set aside the impugned order dated 12.01.2022, whereby the Special Judge, SC/ST Act/Additional Sessions Judge, Allahabad has rejected the bail application No. 20 of 2022 of the appellants moved by them in Case Crime No. 113 of 2021, under Sections 304, 328, 272 I.P.C., Section 3(2)V of SC/ST Act and Section 60/63 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 the appellant and three named accused persons under Sections 328, 272 of I.P.C. and Section 60, 63 of Excise Act stating therein that on 24.03.2021 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. Co-accused Vimlesh Devi and other co-accused are prepareing and selling adulterated liquor.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case during investigation. It is further submitted that no incriminating article has been recovered from the possession of appellants. 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 has also been submitted that co-accused Vinod Bhartiya and Shailesh Jaiswal @ Kashi, Vikas Jaiswal @ Vikki have been granted bail by Coordinate Bench of this Court as well as by this Court vide orders dated 27.04.2022 and 02.11.2022 passed by this Court in Criminal Appeal Nos. 3495 of 2022 and 02.11.2022 respectively and the appellant is also entitled to be enlarged on bail on the ground of parity.

It is further submitted that appellant has criminal history of 3 previous cases, which has been duly explained in paragraph no. 3 of the supplementary affidavit, in which he has been granted granted bail.

It is further submitted that the appellant is languishing in jail since 21.06.2022. The appellant has no other criminal history except the aforesaid cases.

It is further submitted that there is no possibility of the appellants of fleeing away after being released on bail or tampering with the witnesses. In case the appellants are enlarged on bail, they shall not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for second respondent have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant. They further submit 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 informant and Buchche Kanaujia purchased a quarter from the home of co-accused Vimlesh Devi.

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

(c) Co-accused Vinod Bhartiya and Shailesh Jaiswal @ Kashi, Vikas Jaiswal @ Vikki have been granted bail by means of an order dated 27.04.2022 and 02.11.2022 passed by this Court in Criminal Appeal Nos. 3495 of 2022 and 02.11.2022.;

(d) The appellant is languishing in jail since 21.06.2022.

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 12.01.2022 is set aside.

Let appellants/applicant, Sanjay Jaiswal @ Sanjeev Kumar 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 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 that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The appellant 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 :- 28.11.2022

Ishan