Allahabad High Court
Ashish Agrawal @ Taru vs State Of U.P. And Another on 17 April, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 80
Case :- CRIMINAL APPEAL No. - 3313 of 2022
Appellant :- Ashish Agrawal @ Taru
Respondent :- State of U.P. and Another
Counsel for Appellant :- Sharique Ahmed,Shashank Tripathi
Counsel for Respondent :- G.A.,Ganesh Mani,Lal Mani Singh,Praveen Kumar Singh
Hon'ble Siddharth,J.
Heard Sri Dilip Gupta, learned Senior Counsel assisted by Sri Sharique Ahmed, learned counsel for the appellant; learned A.G.A for opposite party no.1; Sri Lal Mani Singh, learned counsel for opposite party no. 2 and perused the material placed on record.
Certified copy of FSL report dated 18.03.2023 placed before this Court 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 to set aside the impugned order dated 21.04.2022 whereby the Special Judge, S.C./S.T. Act, Kanpur Nagar has rejected the bail application of the appellant moved by him in Case Crime No. 225 of 2021, under Sections- 302, 504, 506 IPC and Section 3(2)5 of SC/ST Act and Section 27 of Arms Act, Police Station- Kotwali, District- Kanpur Nagar.
In the FIR, the applicant whose name is Ashish Agarwal @ Taru, has been implicated by the name of Tarun Gupta. There is allegation against him that he has caused the murder of the deceased by way of firing during Bar Association election in Kutchery, Kanpur Nagar.
There is allegation in the FIR that appellant, who is an advocate has caused the murder of deceased, who was also an advocate in Kutchery premises. Recovery of 0.315 bore country made pistol was made on the pointing out of the appellant.
Learned Senior Counsel for the appellant has submitted that before the trial Court, informant has been examined as P.W-3 and she has stated that she is not eye-witness of incident and had lodged the FIR on the basis of information received from people. P.W.-4 and P.W.-5 are also not the eye-witnesses and have not proved the implication of appellant before the Court. The appellant is languishing in jail since 18.12.2021 and has no criminal history to his credit. The allegations regarding the causing of offence under Section SC/ST Act are not made out in view of the judgment in the case of Patan Jamal Vali vs. The State of Andhra Pradesh, 2021(II) SCCrJ 58 (SC). Certified copy of the forensic report has been placed before this Court. It has been argued that the pistol allegedly used in the crime by appellant has not matched with the cartridges recovered from the spot. The appellant alleges false implication in this case. It is a case of malicious prosecution under the provisions of SC/ST Act. In case, the appellant is released on bail, he will not misuse the liberty of bail.
Learned counsel for the informant has vehemently opposed the bail application and has submitted that the father and mother of the deceased have supported the prosecution case. He has submitted that the deceased was an Advocate and has been murdered in the premises of Kutchery, Kanpur Nagar. It is not a fit case for granting bail to the appellant.
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 appellant and submits that the allegations involved are very serious in nature. But he could not point out any material to the contrary. He further submits that in case the appellant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
After hearing the rival contentions, this Court finds that the witness of fact has not supported the prosecution allegations. The father and mother of deceased were not the eye-witness of incident like the first informant.
It appears that the Court below has not properly considered the facts of the case. Hence, in view of above consideration, the order of rejection of bail passed by the court below dated 21.04.2022 is, hereby, set aside.
Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, court is of the opinion that the appellant is entitled to be enlarged on bail.
Let appellant, Ashish Agrawal @ Taru, 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 that he 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 his 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 appellant 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 within period of six months after the release of the appellant, 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 criminal appeal is allowed.
Registrar (compliance) is directed to communicate this order to the trial Court for necessary compliance within a week.
Order Date :- 17.4.2023
Rohit
