Court No. - 89
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54237 of 2021 Applicant :- Kamlesh Sahani Opposite Party :- State of U.P.
Counsel for Applicant :- Arvind Prabodh Dubey Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
Heard Sri Arvind Prabodh Dubey, learned counsel for the applicant, and Sri D.N. Tiwari, learned A.G.A. for the opposite party.
This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of the applicant being Kamlesh Sahani for seeking bail in Case Crime No. 261 of 2021 under Section 3 (1) U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, registered at Police Station- Jhangaha, District- Gorakhpur.
The bail application of the applicant has been rejected by the court below, on 02.09.2021.
The learned counsel for the applicant has argued that that First Information Report was lodged by one Sri Sanjay Kumar Mishra against the applicant and 17 others under Section 3(1) of the Gangster Act before Police Station- Jhangaha, District- Gorakhpur on 14.07.2021 as Case Crime No. 0261 of 2021. Learned counsel for the applicant has drawn attention of the Court towards the gang chart which is at Annexure-2 at page 29, relevant extract whereof at page 30 so as to contend that there were 3 criminal cases pending against the applicant and in all of them the applicant has been bailed out. The applicant has referred to page 40 of the paper book wherein the order dated 07.09.2021 passed in Criminal Misc. Bail Application No. 30345 of 2021 (Kamlesh Sahani Vs. State of U.P.) wherein the applicant has been enlarged on bail in Case Crime No. 135 of 2021 under Sections 147, 148, 149, 332, 353, 307, 436, 427, 151, 152, 153, 186, 189, 120-B, 395, 188 IPC, 7 C.L.A. Act & 3/4 Public Property Damages Act, 51 Disaster Management Act, Police Station Jhangaha, District Gorakhpur. Learned counsel for the applicant has next referred to page 43 of the paper book being the order passed in Bail Application No. 2182 of 2021 in Case Crime No. 136 of 2021 under Sections 147, 148, 149, 336, 435, 307 I.P.C. and 3/4 Public Property Damages Act, Police Station Jhangaha, District Gorakhpur as well as the order dated 17.05.2021 passed in Case Crime No. 138 of 2021 enlarging the applicant on bail. Learned counsel for the applicant has further argued that he is languishing in jail since 16.07.2021 and also referred an order passed by the co-ordinate Bench of this Court in case of co-accused Ram Sakal Nishad. Learned counsel for the applicant has further argued that the gang leader Ramsakal Nishad has also been granted bail by virtue of order dated 23.10.2021 in Criminal Misc. Bail Application No. 41220 of 2021. He lastly submits that if the applicant is released on bail, he will not misuse the liberty of bail.
Countering the said submission, learned A.G.A. has opposed the bail but he could not find out any infirmity in the factual position, as argued by learned counsel for applicant.
Looking into the nature of the offence, there are no chances of accused fleeing from justice and period of detention in jail, without expressing any opinion on the merits, this case is found to be a fit case for bail.
Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant Kamlesh Sahani involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i). The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
(ii). The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii). The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(iv). 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 to any police officer or tamper with the evidence.
(v). In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
(vi). Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicant is placed before the Court, the same would be entertained.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 22.12.2021 Vikram Digitally signed by VIKAS BUDHWAR Date: 2021.12.23 17:14:34 IST Reason: Document Owner Location: High Court of Judicature at Allahabad