R.K Saxena ( Rajesh Kumar Saxena) vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 19114 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:49129
 
Court No. - 16
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9418 of 2023
 

 
Applicant :- R.K Saxena ( Rajesh Kumar Saxena)
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Arshad Jameel,Arvind Kumar Awasthi,Versha Rani Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Subhash Vidyarthi,J.

1.    Heard Ms. Versha Rani Srivastava, the learned counsel for the applicant, Sri J.L. Maurya, the learned A.G.A. for the State and perused the records.

2.    The instant application has been filed seeking release of the applicant on bail in Case Crime No. 0584 of 2011, under Section 3/7 of Essential Commodities Act, registered at Police Station Thakurganj, District Lucknow.

3.    The aforesaid case has been registered on the basis of an F.I.R. lodged on 27.12.2011, stating that a domestic L.P.G. cylinder was recovered from the applicant's car and the applicant had confessed that he had got gas refilled in his car.

4.    In the affidavit filed in support of bail application it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history.

5.    The learned A.G.A. has opposed the prayer for bail but he could not dispute the aforesaid aspects of the matter.

6.    The bail application of the applicant has been rejected by learned Additional District & Sessions Judge, Court No.4, Lucknow by means of an order dated 11.07.2023. The rejection order records the contention of the applicant that he is suffering from various diseases and his detention in the prison will be detrimental to his health. The learned Sessions Judge recorded that while granting the bail to the applicant he has to take into consideration the effect on the society due to the offence committed by the applicant and apprehension of the offence being influence apart from other things. Learned Sessions court recorded that it is apparent from the documents of the record that the applicant could not produce any paper regarding the 'cylinder', whereas the allegations in the F.I.R. is that a domestic L.P.G. cylinder was found in the applicant's car and it does not make a mention of any papers having been demanded from the applicant and the applicant having been failed to produce the papers. The learned Sessions Court has further recorded that it is evident that the applicant is engaged in illegal refilling and illegal sale of domestic cylinders, whereas there was no such allegation in the F.I.R. The learned Sessions Judge has further recorded that the offence committed by the applicant is of a serious nature and in case the applicant is released on bail there is every probability of recurrence of the offence by him, whereas no such material was placed before the prosecution as would justify such a conclusion being drawn by the learned sessions court. The offence alleged carries a maximum punishment of seven years. The Court has apparently not taken into consideration the relevant factors for grant or refusal of bail namely the nature of allegation and the material relied upon by the prosecution.

7. The learned Sessions Court has also not taken into consideration the mandate of Hon'ble Apex Court in the case of Satender Kumar Antil vs Central Bureau of Investigation and another, (2021) 10 SCC 773. In Satender Kumar Antil v. CBI (supra) the Hon'ble Supreme Court laid down the following guidelines for grant of bail to persons accused of various category of cases, and the present case falls within Category A, regarding which the following guidelines have been made: -

"Categories/Types of Offences

i. Offences punishable with imprisonment of 7 years or less not falling in Categories B & D.

ii. Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

iii. Offences punishable under Special Acts containing stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA [Section 43-D(5)], Companies Act, [Section 212(6)], etc.

iv. Economic offences not covered by Special Acts.

REQUISITE CONDITIONS

1. Not arrested during investigation.

2. Cooperated throughout in the investigation including appearing before investigating officer whenever called.

(No need to forward such an accused along with the charge-sheet (Siddharth v. State of U.P. [Siddharth v. State of U.P., (2022) 1 SCC 676 : (2022) 1 SCC (Cri) 423] )

CATEGORY A

After filing of charge-sheet/complaint taking of cognizance

Ordinary summons at the 1st instance/including permitting appearance through lawyer.

If such an accused does not appear despite service of summons, then bailable warrant for physical appearance may be issued.

NBW on failure to appear despite issuance of bailable warrant.

NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided."

Thus the Hon'ble Supreme Court has merely reiterated the law which was already settled, that the bail application may be decided without the accused being taken in physical custody.

8. However, it came to light that several of the Courts, including to a large extent the Courts in Uttar Pradesh, are not following the law laid down in Satender Kumar Antil (Supra). Therefore, the Hon'ble Supreme Court issued the some further directions in Satender Kumar Antil Versus Central Bureau of Investigation and Another, 2023 SCC OnLine SC 452, which are as follows: -

"4. Counsels have produced before us a bunch of orders passed in breach of the judgment in the case of Satender Kumar Antil v. CBI only as samples to show how at the ground level despite almost 10 months passing, there are a number of aberrations. It is not as if these judgments have not been brought to the notice of the trial Courts and in fact have even been noted, yet orders are being passed which have a dual ramification i.e., sending people to custody where they are not required to be so sent and creating further litigation by requiring the aggrieved parties to move further. This is something which cannot be countenanced and in our view, it is the duty of the High Courts to ensure that the subordinate judiciary under their supervision follows the law of the land. If such orders are being passed by some Magistrates, it may even require judicial work to be withdrawn and those Magistrates to be sent to the judicial academies for upgradation of their skills for some time.

5. Amongst the illustrative orders, very large number of them happens to be from Uttar Pradesh and we are informed that orders passed specially in Hathras, Ghaziabad and Lucknow Courts seem to be in ignorance of this law. We call upon the counsel for the High Court of Allahabad to bring this to the notice of the Hon'ble the Acting Chief Justice so that necessary directions are issued to ensure that such episodes don't occur, including some of the suggestions made by us above."

9. Yet again, in Satender Kumar Antil Versus Central Bureau of Investigation and Another, 2023 SCC OnLine SC 758, the Hon'ble Supreme Court had to reiterate that: -

"5. The judgment of this Court including the one in Satender Kumar Antil's case (supra) is the law of the land. There is no question of anyone violating the principles laid down. Suffice for us to say that wherever this judgment is applicable, it's principles must be followed.

6. We may note that apparently there are large number of cases arising especially in Uttar Pradesh and other States where the grievance made is that the judgment is not being followed. We consider appropriate that this order should be placed before the Chief Justice of the Allahabad High Court to ensure there is sufficient dissemination of information about this judgment."

10.    Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the only allegation against the applicant is that a domestic L.P.G. cylinder was found from his car and the other material is his custodial confession and he got the gas refilled in his car coupled with the fact that the applicant has no previous criminal history and he is languishing in jail since 02.07.2023 and without making any observation, which may affect the merits of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime.

11.    Accordingly, this bail application stands allowed.

12.    Let the applicant-R.K. Saxena (Rajesh Kumar Saxena) be released on bail in Case Crime No. 0584 of 2011, under Section 3/7 of Essential Commodities Act, registered at Police Station Thakurganj, District Lucknow on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

(i) the applicant shall not tamper with the prosecution evidence;

(ii) the applicant shall not pressurize the prosecution witnesses;

(iii) the applicant shall appear on each and every date fixed by the trial court.

13.    In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

14. Let a copy of this order be send to learned District Judge, Lucknow for being communicated to the Presiding Officer of the Court of learned Additional District & Sessions Judge, Court No.4, Lucknow, who had passed the order dated 11.07.2023 rejecting the applicant's bail application.

(Subhash Vidyarthi, J.)

Order Date :- 26.7.2023

Ram.