HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 83

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 12116 of 2018

Applicant :- Jawahir Jaiswal

Opposite Party :- State Of U.P.

Counsel for Applicant :- Ishwar Chandra Tyagi,Nirvikar Gupta

Counsel for Opposite Party :- G.A.,Amrita Mishra,Husna Bano,V.K. Baranwal

Hon’ble Raj Beer Singh,J.

Heard Sri Nirvikar Gupta, assisted by Sri Ishwar Chandra Tyagi, learned counsel for the applicant, Sri Alok Ranjan Mishra, holding brief of Ms. Amrita Mishra, learned counsel for the complainant, learned A.G.A. for the State and perused the record.

According to prosecution version, on 26.6.2017 at about 12:00, the deceased Rajkapoor Pathak @ Pampam Pathak, son of the complainant, was called by co-accused Pramod Jaisawal at his rice mill and thereafter, he, applicant-accused Jawahar Jaisawal and two-three other persons committed murder by firing bullets at the deceased Rajkappor Pathak @ Pampam Pathak.

It has been argued by the learned counsel for the applicant that the complainant is not an eye-witness of the alleged incident as he has never mentioned that he witnessed the alleged incident. In his statement under Section 161 Cr.P.C. the complainant has stated that he has reached at the spot after receiving information of the incident and that he was told about the alleged incident by others. It was submitted that from the statement of the complainant as recorded under Section 161 Cr.P.C., it is apparent that complainant Rajesh Pathak is not an eye-witness of the alleged incident. It was further submitted that another witness Sonu Pathak is also not an eye-witness and as per his statement under Section 161 Cr.P.C., he has merely seen co-accused Pramod Jaisawal along with two other persons on a motorcycle. It was further stated that another witness Indrasen Pathak, in his statement recorded under Section 161 Cr.P.C., has inter alia stated that at the time of the incident, co-accused Pramod Jaisawal was saying that let the plan hatched by applicant Jawahir Jaiswal be executed and thereby he came to know that applicant was also involved in the matter. Learned counsel submits that none of the alleged witness examined during investigation, has stated about the presence of the applicant at the spot while investigation of the case is complete and charge-sheet has already been filed in the court. Learned counsel further submits that deceased has long criminal history of as many as nine heinous criminal cases and out of them in one case i.e. Crime No. 588 of 2015, under Sections 395, Section397 IPC, P.S. Khalilabad, District Sant Kabir Nagar, the applicant was complainant and on account of that fact, applicant has been named in the present case merely on the basis of suspicion but without any evidence while there is no categorical statement of any of the witness that applicant was present at the spot or participated in the alleged incident. Learned counsel stated that though, the bail of co-accused Pramod Jaisawal has been rejected but he was shown present at the spot and witnesses have spoken about his presence at the spot and making firing at the deceased while taking the prosecution version as such, at the most, the case of criminal conspiracy is made out against the applicant. It was further stated that applicant is languishing in jail since 28.07.2017 and except one non-cognizable report and one case under Section 406 IPC, he has no criminal history. In the alleged two cases the applicant is already on bail. In case the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the trial.

Learned A.G.A. as well as learned counsel for the complainant have opposed the bail application and argued that applicant is named in the FIR and he was involved in the commission of the murder of the deceased. It was a day light murder and there is sufficient evidence against the applicant to indicate his involvement in the incident. The eye-witnesses examined during investigation have made statement regarding his involvement in the incident of the murder of deceased. It was further pointed out that role of the applicant-accused is similar to the co-accused Pramod Jaisawal while the bail application of co-accused Pramod Jaiwawal has already been rejected by this Court.

Though, the applicant is named in the FIR, however, perusal of record shows that the complainant in his statement under Section 161 Cr.P.C. has stated that he was told about the incident by others and has reached at the spot after receiving information while another witness Indrasen Pathak has stated that deceased was fired by co-accused Pramod Jaisawal saying that plan hatched by applicant is to be executed. In view of these facts the role of the applicant-accused appears on different footing than that of co-accused Pramod Jaisawal. Considering the submission of learned counsel for the parties, facts of the case, nature of allegation, period of custody, gravity of offence and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let applicant Jawahir Jaiswal involved in Case Crime No.1226 of 2017, under Section 147, Section148, Section149, Section302, Section506 IPC, Police Station Kotwali Khalilabad, District Sant Kabir Nagar be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:

1. The applicant will not tamper with the evidence during the trial.

2. The applicant will not pressurize/ intimidate the prosecution witness.

3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

5. The applicant 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.

In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.

Order Date :- 21.8.2019

A. Tripathi