Allahabad High Court
Sant Prasad Jaiswal Alias Guddu Jaiswal vs State Of U.P. And Another on 8 May, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:82256
Reserved on 24.04.2024
Delivered on 08.05.2024
Court No. - 65
Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 214 of 2019
Applicant :- Sant Prasad Jaiswal Alias Guddu Jaiswal
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ashish Kumar Gupta
Counsel for Opposite Party :- G.A.,Ajatshatru Pandey
Hon'ble Saurabh Shyam Shamshery,J.
1. This Court has passed following order on 19.04.2024:
"1. Present bail cancellation application was filed on 24.07.2019 and it was earlier listed for hearing on atleast 15 dates in last four years and eight months, however, it was adjourned for completion of pleadings or due to absence of counsel for applicant or counsel for accused.
2. Accused in present case, is facing trial for offences under Sections 302, 120B, 34 IPC in Case Crime No. 260 of 2012 (Session Trial No. 502 of 2012), Police Station Cantt., District Varanasi, pending in the Court of Additional Sessions Judge/ Special Judge (P.C. Act), Special Court No. 01, Varanasi.
3. In the present case, alleged occurrence took place on 23.04.2012 when elder brother of Informant was murdered at market place at about 08.00 AM by two unknown persons. During investigation it was revealed that accused and his son (co-accused) hatched a conspiracy to eliminate applicant herein as they had suspicion that he was not conducting proper pairavi of their various criminal cases but due to mistaken identity instead of applicant herein, assailants shot his cousin brother (elder brother of Informant).
4. As per record, after much pursuance and orders passed by this Court, finally accused was arrested on 12.01.2019, i.e., after about seven years from the date of occurrence, as there was evidence that he and his son paid money to hired contract killers after hatching conspiracy with other co-accused. Son of accused also surrendered and was granted bail by this Court vide order dated 25.02.2019 passed in Criminal Misc. Bail Application No. 8023 of 2019.
5. Bail Application of accused was rejected by Trial Court and thereafter, he filed Criminal Misc. Bail Application No. 13896 of 2019 before this Court. In application (not on record) he has disclosed his long criminal history of 25 criminal cases for offences under Excise Act, 304 IPC, Forgery, E.C. Act etc.
6. The Coordinate Bench of this Court vide order dated 09.04.2019 granted bail to accused and reasons assigned in order are mentioned hereinafter:
"3. Learned counsel for the accused applicant argued that applicant is innocent. He has been falsely implicated in this case crime number that too after nine months of occurrence to commit murder of Sant Prasad Jaiswal but owing to mistaken identity, someone other than him, was murdered in the occurrence. Whereas, accused applicant was of no concern and owing to his political activities and being Ex-Member of Parliament and businessman, he was with enmity of many persons and under above enmity, this false implication was got lodged. Co-accused including the main shooter alleged with the occurrence, has been granted bail in this case crime number by coordinate Bench of this Court in bail applications whereas bail of present accused applicant has been rejected by Session Judge, Varanasi, on the ground of having 25 criminal cases pending against him but accused applicant is on bail in all those cases and he is in judicial custody since 12.1.2019, in this case crime number. First Information Report for the murder of Mahesh Prashad Jaiswal, was got lodged against unknown assailants and name of present applicant came in the light, first time, after recording the statement, which was third statement recorded under Section 161 of Cr.P.C. of Sant Prasad Jaiswal on 8.1.2013 i.e. nine months of alleged occurrence. During the course of investigation, Sant Prasad @ Guddu Jaiswal, in his statement, recorded under Section 161 Cr.P.C., on 30.4.2012, has said that Vijay Kumar Jaiswal made a conspiracy to kill him through other co-accused persons but owing to mistaken identity, his cousin, Mahesh Jaiswal, was got murdered in above occurrence. This statement was with variation in subsequent statements recorded by I.O. Hatching of conspiracy was with no evidence on record, except statement of Sant Prashad @ Guddu Jaiswal, recorded under Section 164 of Cr.P.C. as well as alleged statement in form of conversation, which was discussed by co-accused persons before a tea shop, which was heard by someone, who disclosed it after a considerable delay.
4. The criminal history has been fully explained and accused applicant is on bail in all those cases, which were regarding business rivalry or political rivalry, hence bail has been prayed for.
5. Learned private counsel for informant as well as learned AGA has vehemently opposed the bail application with the same contention that accused applicant, who was with political influence being Member of Parliament of a political party, was with influence over investigation and case was investigated under his influence but owing to recording of statement before judicial authority, this was referred, in which name was established and up till Apex Court, no relief was obtained, hence, this judicial arrest and judicial custody is there. Hence, bail has been opposed.
6. Having heard learned counsels for both sides and perused the record, it is admitted fact that co-accused Vijay Singh @ Ajay Singh, Rohit Singh alias Sani Singh, Haidar Ali, in this Case Crime No. 260 of 2012, has been enlarged on bail by Court of Session Judge, Varanasi, vide order dated 14.8.2012. Accused Anand Kumar Pandey has been enlarged on bail in Criminal Misc. Bail Application No. 19061 of 2012, vide order dated 6.8.2012. Accused Rama Nand Tiwari @ Manav has been enlarged on bail in Criminal Misc. Bail Application No. 21262 of 2012, vide order dated 22.8.2012. Accused Faheem Ahmad @ Finku, who has been assigned the role of giving firearm shot over deceased, resulting his injury and death has been enlarged on bail, in this case crime number, in Criminal Misc. Bail Application No. 1239 of 2013, vide order dated 29.4.2013, Gaurav Jaiswal, son of accused applicant, who too was assigned the role of conspiracy as present accused applicant has been enlarged on bail by coordinate Bench of this Court in Bail Application No. 8023 of 2019, vide order dated 25.2.2019. Meaning thereby, each of co-accused of this case crime number including conspirator and shooter, has been enlarged on bail by this Court, hence, regarding heinousness of offence, gravity of offence, severity of sentence the case is at par with those accused persons, who have been enlarged on bail, now the question of criminal history, on the basis of which, Session Judge, has rejected bail, it is to be mentioned that in all those cases accused applicant is on bail and he is in judicial custody in this present case only, regarding medical health, it has been argued and written in bail application that accused applicant being old aged person has suffered and have been treated for heart ailment. Under all above facts and circumstances and without commenting on merit, a case for bail is made out."
7. The aforesaid order was challenged at the instance of applicant herein (cousin brother of deceased), who claimed that he was the real target, before Supreme Court (copy of SLP is not on record) bearing Special Leave Petition (Crl.) Diary No. 17729 of 2019. The SLP was disposed of vide order dated 27.05.2019 and order in its entirety is mentioned hereinafter:
"Permission to file the Special Leave Petition is granted.
Learned counsel appearing on behalf of the petitioner has submitted that the High Court has gone a wrong premise that in all other cases in which the respondent-accused is involved, he has been enlarged on bail which is factually incorrect.
Let the petitioner point out before the High Court the aforesaid aspect and as and when the same is pointed out, the High Court may consider the same in accordance with law and on its own merits.
With this observation, the Special Leave Petition is dismissed.
Pending application(s), if any, shall stand disposed of."
8. In pursuance of above order, present Bail Cancellation Application was being filed.
9. Sri Ashish Kumar Gupta, learned counsel for applicant, has referred that while granting bail to accused, Coordinate Bench has noted that in all criminal cases accused was already granted bail but it was factually incorrect and in this regard learned counsel refers contents of paragraph no. 11 of this application that atleast in six cases bail applications were decided subsequently and were rejected. For reference contents of said paragraph are mentioned hereinafter:
"11. That it is relevant to submit here that at the time of hearing of the bail application, the accused opposite party no.2 have not on bail in all those cases mentioned in the paragraph no.52 as such on that very time six bail application of accused opposite party no. 2 have been pending before the Session Judge Maharajganj, so that the contention of counsel for the accused opposite party no. 2 was totally false and incorrect, the details of pending bail application which was subsequently rejected by learned Session Judge, Maharajganj are as under:-
(i) Bail Application No. 331 of 2019 in Case Crime No. 440 of 2017 under Section 120, 120-B, 265, 264, 420, 425 of I.P.C. Police Station- Thuthibari, District- Maharajganj rejected on 15.04.2019.
(ii) Bail Application No. 236 of 2019 in Case Crime No. 290 of 2018 under Section 408, 409, 417, 418, 420, 427, 465, 468, 120-B of I.P.C and 22-B Sugarcane Act and 3/7 Essential Commodities Act, Police Station- Thuthibari, District- Maharajganj rejected on 15.04.2019.
(iii) Bail Application No. 267 of 2019 in Case Crime No. 51 of 2018 under Section 418, 409 of I.P.C Police Station- Thuthibari, District- Maharajganj rejected on 15.04.2019.
(iv) Bail Application No. 332 of 2019 in Case Crime No. 448 of 2015 under Section 3/7 Essential Commodities Act, and 419, 420 of I.P.C Police Station- Thuthibari, District- Maharajganj rejected on 15.04.2019.
(v) Bail Application No. 293 of 2019 in Case Crime No. 2417 of 2017 under Section 418,420,332 of I.P.C and 110 Cr.P.C Police Station Thuthibari, District- Maharajganj rejected on 15.04.2019.
vi) Bail Application No. 377 of 2019 in Case Crime No. 149 of 2014 under Section 420 of I.P.C and 22 Sugarcane Act, Police Station- Thuthibari, District- Maharajganj rejected on 15.04.2019.
All the aforesaid bail application of accused opposite party no. 2 have been rejected on 15.04.2019 after granted bail to the accused opposite party no. 2 in present Case Crime No. 260 of 2012 ie. order dated 09.04.2019. In support of the aforementioned facts, a true copy of the bail rejection orders of the accused opposite party no. 2 dated 15.04.2019 in Case Crime No. 440 of 2017, Case Crime No. 290 of 2018, Case Crime No. 51 of 2018, Case Crime No. 448 of 2015, Case Crime No. 24 of 2017 and Case Crime No. 149 of 2014 are being collectively filed herewith and marked as Annexure No.6 to this affidavit."
10. Sri Ajatshatru Pandey, learned counsel appearing for accused, could not deny above referred details being based on record, however, he submits that there are reasonable explanations and that it was not a case of misrepresentation.
11. In pursuance of an order dated 31.10.2023 passed by this Court, Trial Court has submitted a status report dated 15.02.2024 that out of 32 proposed witnesses, 13 prosecution witnesses have been examined and according to Public Prosecutor five more prosecution witnesses are still to be examined. Learned counsel for accused submits that as on today, 17 prosecution witnesses are already examined and trial is at its fag end.
12. Present application is pending before this Court for last four years and eight months and there was an observation of Supreme Court to examine the case, whether accused has misrepresented or not. Court takes note of submission of counsel for accused recorded in the order dated 09.04.2019, as referred above. In this regard it is relevant to refer para 12 of a judgment passed Supreme Court in Himanshu Sharma vs. State of Madhya Pradesh, 2024 SCC OnLine SC 187 as under:
"12. Law is well settled by a catena of judgments rendered by this Court that the considerations for grant of bail and cancellation thereof are entirely different. Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail, (a) the accused has misused the liberty granted to him; (b) flouted the conditions of bail order; (c ) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail; (d) or that the bail was procured by misrepresentation or fraud........."
13. To finally decide the present application, Court wants certain relevant information to be brought on record or to keep ready on next date of hearing:
(a) A complete copy of bail application filed by accused before this Court.
(b) A complete copy of SLP filed by applicant before Supreme Court.
(c) Copy of orders whereby other co-accused were granted bail.
(d) Specific instructions, that whether accused or co-accused has tried to interfere with trial as well as details of dates on which trial was adjourned due to accused or co-accused and for that instructions may be sought from Public Prosecutor. A copy of order sheet may also be made available.
(e) Learned AGA also takes instructions, whether accused has tried to influence witnesses, since according to submission of counsel for applicant, accused and his co-accused are very powerful and influencing persons as occurrence took place in 2012, accused and his son were made accused later on and were arrested in 2019 and trial is still not concluded.
14. Learned counsel for parties and AGA will take above instructions and will keep relevant records available on next date of hearing as well as why no bail cancellation application was filed by the State as there are serious allegation of misrepresentation.
15. Learned counsel for accused ensures that accused-Jawahar Lal Jaiswal will remain present before this Court on next date, therefore, at this stage Court is not passing any order for ensuring his presence through concerned Chief Judicial Magistrate or Commissioner of Police.
16. Let this matter may come up for further hearing on 24th April, 2024 at 02.00 PM.
17. Registrar (Compliance) is directed to send a copy of this order to concerned Trial Court to be kept on record."
2. Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Ajatshatru Pandey, learned counsel appearing for accused, has submitted that he was appearing on behalf of accused when bail was granted and statement was made with responsibility that in the cases mentioned in bail application accused was granted bail. He has not referred details of six cases mentioned in present application wherein later on bail was rejected. He further submitted that it may be an error on his part that he was failed to properly communicate to the Court but it was not a case of misrepresentation. Learned Senior Advocate further submitted that trial is proceeding and prosecution witnesses are being examined in a free and fair manner. No complaint whatsoever was brought into notice of Trial Court or this Court despite this application was pending for last about more than four years. Accused is an old man and for a reason that there may be some miscommunication so far as recording of his submission is concerned, he may not be penalized to sent jail again.
3. Sri Ashish Kumar Gupta, learned counsel appearing for applicant, has reiterated the grounds mentioned in present application.
4. Heard learned counsel for parties and perused the material available on record.
5. As referred above, submission with regard to criminal history of accused and that bail was granted in all cases, was recorded in bail order at three places. It appears that entire criminal history was not mentioned in application for bail and reference made in bail order was with regard to bail granted to accused in cases mentioned in bail application and not in cases mentioned in present bail cancellation application. Therefore, this Court is of considered opinion that except in a very strict view, it may not be a case which would fall under "misrepresentation". However, it would be necessary to observe that learned counsels while disclosing criminal history of any accused as well as status of bail thereof, must remain cautious and take proper instruction from pairokar since any element of misrepresentation could be considered adversely. Pairokar also remain responsible to make any averment / declaration on oath. In present case counter affidavit was not sworn by accused himself, which is also not a correct practice.
6. In view of above, I do not find any reason to cancel bail granted to accused at this stage. The application is disposed of with an observation that in case accused violates any condition of bail, Trial Court will be at liberty to cancel his bail forthwith and further trial be concluded within a short period.
7. Registrar (Compliance) to take steps.
Order Date :-08.05.2024
AK
