Allahabad High Court
Tej Prakash Kesarwani @ Prakash ... vs State Of U.P. Thru. Prin. Secy. ... on 5 May, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1938 of 2022
Applicant :- Tej Prakash Kesarwani @ Prakash Kesarwani And Another
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko.
Counsel for Applicant :- Santosh Kumar Jha
Counsel for Opposite Party :- G.A.
Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the applicants, learned A.G.A. for the State-respondents and perused the record.
The present anticipatory bail application has been filed on behalf of the applicants in connection with F.I.R. No. 486 of 2019, under Sections 147, 323, 504, 506, 427, 452 IPC, Police Station Hasanganj, District Lucknow, with a prayer to enlarge them on anticipatory bail.
This Court vide order dated 08.02.2023, while granting interim protection to the applicants, has passed the following order:-
"Heard learned Counsel for the applicant and learned A.G.A. for the State/respondent as well as perused the record.
Learned Counsel for the applicants has drawn attention of this Court towards order dated 30.11.2022 by which the Investigating Officer was directed to file an Affidavit. The order is extracted below:-
"Pursuant to order dated 19.11.2022, a supplementary affidavit on behalf of the applicants filed today and the same is taken on record.
The main substratum of argument of learned counsel for the applicants is that during the course of investigation, investigating officer has recorded the statement of Mangi Lal Dayma, Himanshu Bhasin, Rakesh Vaish, Ravi Vaish and Vikas Agarwal which have been brought on record as Annexure No. 4, 4-A, 4-B, 4-C and 4-D respectively and they have clearly stated that no such incident took place as alleged by the complainant and a false FIR has been lodged against accused persons. It is also argued that the said statements are also part of case diary and since the independent witnesses have not supported the prosecution case, therefore, the investigating officer, ignoring their statement, filed charge-sheet dated 13.12.2019 relying on the statement of the complainant-Suresh Chandra Agarwal, his daughter-Swati and his wife-Rama Devi, as such, it is apparent that the investigating officer has not conducted fair investigation.
Learned A.G.A. prays for and is allowed three days time to file an affidavit of the investigating officer as to why the statement of aforesaid independent witnesses have not been taken into consideration.
List this case on 05.12.2022 as fresh."
Learned counsel for the applicants submits that in spite of the above order, no Affidavit has been filed by the Investigating Officer. The applicants are apprehending arrest. The Investigating Officer has not conducted the fair investigation. He has overlooked the statement of the independent witnesses, which are contained in Annexure-4,4-A, 4-B, 4-C, 4-D, who have denied the incident even Doctor Saurabh Singh, who have examined the injuries of injured Anand Agarwal and Sureshchandra Agarwal, has opined that injury no.1 of Anand Agarwal is five to seven days old, which falsifies the entire prosecution story. Injury nos. 2 and 3 of Anand Agarwal are simple. So far as co-accused Sureshchandra Agarwal is concerned there was no apparent injury.
Learned A.G.A. for the respondent State could not assign any reason as to why Affidavit has not been filed by the Investigating Officer. He prays for one week time to file Affidavit.
On due consideration to the arguments advanced; perusal of the record; order dated 30.11.2022 passed by this Court; so also the statement of Dr. Saurabh Singh and the fact that charge-sheet in the matter has been filed and the applicants have cooperated in the investigation; and also considering the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1, it would be appropriate to grant interim protection to the applicants under Section 438 Cr.P.C.
Till the next date of listing, it is provided that in the event of arrest, the applicants Tej Prakash Kesarwani @ Prakash Kesarwani and Nirmala Kesarwani shall be released on bail in the aforesaid case crime number on their furnishing a personal bond and two sureties of the like amount to the satisfaction of the court concerned.
The applicants shall cooperate in the trial and he will not influence the witnesses. The applicants shall not leave India without previous permission of the Court.
List on 16.2.2023.
As prayed by learned A.G.A. one week time is granted to him to file Affidavit, failing which, the Investigating Officer concerned shall appear before this Court on the next date of listing to assist the Court."
Learned counsel for the applicants submits that charge-sheet has been filed. Applicants have not misused the liberty granted by this Court. The statement of independent witnesses have been overlooked by the Investigating Officer. He further submits that applicants were cooperated in the investigation and further undertakes to co-operate in the trial.
Learned A.G.A. has opposed the bail prayer.
On due consideration to the submissions advanced, perusal of the record so also the fact that the statement of independent witnesses have been overlooked by the Investigating Officer as also considering the statement of Dr. Saurabh Singh and the injuries of injured Anand Agarwal and Suresh chandra Agarwal so also the fact that charge-sheet has been filed; the applicants have not misused the liberty granted by this court; they have cooperated in the investigation and they shall further cooperate in the trial, it would be expedient in the interest of justice that the liberty of the applicant may be protected in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.
In view of the above, since, charge-sheet in the matter has been filed, the accused applicants are directed to surrender before trial court, if they are summoned to face trial for offence in question. The accused applicants Tej Prakash Kesarwani @ Prakash Kesarwani and Nirmala Kesarwani shall be released on bail by the trial court on their furnishing a personal bond and two sureties each of the like amount to the satisfaction of the trial court concerned with the following conditions:-
(i) The applicants 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 tamper with the evidence;
(ii) The applicants shall not leave India without the previous permission of the court;
(iii)The applicants shall not pressurize/ intimidate the prosecution witness;
(iv)The applicants shall appear before the trial court on each date fixed unless personal presence is exempted;
(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;
Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.
It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.
In view of the aforesaid, the application is allowed.
Order Date :- 5.5.2023
Saurabh Yadav/-
