Allahabad High Court
Shivanand Upadhyay vs State Of U.P. And Another on 19 October, 2022
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 65
Case :- CRIMINAL APPEAL No. - 3202 of 2022
Appellant :- Shivanand Upadhyay
Respondent :- State of U.P. and Another
Counsel for Appellant :- Ankesh Kumar Dubey,Ravindra Kumar Tripathi
Counsel for Respondent :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Despite service of notice upon the informant / opposite party no. 2, no one has put in appearance on her behalf, therefore Court proceeds to decide this case on its merit.
Heard learned counsel for the appellant, learned A.G.A. representing the State.
This appeal under Section 14-A(2) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 18.04.2022 passed by learned Special Judge (SC/ST Act), Azamgarh in Bail Application No. 1304 of 2022 (Shivanand Upadhyay vs. State of U.P.) arising out of Case Crime No. 221 of 2016, under Sections 307, 504, 120-B IPC and Section 3(1)r, 3(1)s, 3(2)5 of SC/ST Act, Police Station Nizamabad, District Azamgarh, and enlarge the appellant on bail during the pendency of trial.
As per the prosecution case, an FIR was lodged by Smt. Kewali Devi on 15.08.2016 for the alleged offence under Section 307 and 504 IPC against unknown persons which was registered at Police Station Nizamabad, District Azamgarh as Case Crime No. 221 of 2016.
The main substratum of argument of learned counsel for the appellant is that the appellant is not named in the FIR dated 15.08.2016. In the said case, after culmination of the investigation, charge-sheet was submitted only against Sunil Yadav, Sachin Pandey, Balwant Yadav and Vaibhav who have been acquitted by the trial court vide judgment and order dated 08.04.2019. Thereafter, appellant has been involved in the said Case Crime No. 0221 of 2016 and charge-sheet was submitted against him on 15.04.2022 because father of appellant had made a complaint case no. 1794 of 2017 before the court of Chief Judicial Magistrate, Azamgarh against some police persons. Initially the said complaint was dismissed vide order dated 24.11.2018, against which Ramasrey Upadhyay, father of the appellant filed a Criminal Revision No. 315 of 2018 which was allowed vide judgment and order dated 20.01.2021 setting aside the order dated 24.11.2018 directing the concerned trial court to pass fresh order. Thereafter, notices have been issued against the accused persons of that case. It is also pointed out that pursuant to charge-sheet dated 15.04.2022, appellant is facing trial in which statement of Kewali Devi (informant of this case) has been recorded as PW-1 on 13.09.2022 in which she in her cross-examination did not identify the appellant who was present at that time in the court and clearly stated that he has not fired shot at her son Anjani Kumar, as such on merits also, there is bleak chance of conviction of the appellant.
The appellant has been falsely implicated in this case and he is languishing in jail since 12.04.2022. Lastly, it is submitted that due to heavy docket, there is no hope of early conclusion of the trial of the appellant in near future. There is no chance of the appellant fleeing away from the judicial process or tampering with the prosecution evidence. In case, the appellant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.
Per contra, learned A.G.A. for the State opposed the prayer for bail of the appellant by contending that innocence of the appellant cannot be ad-judged at pre-trial stage, but did not dispute the factum of the case as argued on behalf of the appellant.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that appellant is not named in the FIR which was lodged against unknown persons on 15.08.2016 in which charge-sheet was submitted only against Sunil Yadav, Sachin Pandey, Balwant Yadav and Vaibhav who have been acquitted by the trial court vide judgment and order dated 08.04.2019. Thereafter, charge-sheet has been submitted in this case against the present appellant on 15.04.2022 but the informant has not specified the role of causing fire arm injury to the present appellant.
Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and the reasons as mentioned above, this Court is the opinion that the appellant has made out a case for bail. The impugned order rejecting bail of the appellant is liable to be set-aside and the appeal deserves to be allowed.
Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.
Let the appellant-Shivanand Upadhyay involved in the above case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
(i) That the appellant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That 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.
(iii) That after his release, the appellant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the appellant on bail.
In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the appellant.
Order Date :- 19.10.2022
Saurabh
