Nazim vs State Of U.P.
2021 Latest Caselaw 4971 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 28
 

 
Case :- BAIL No. - 4397 of 2021
 

 
Applicant :- Nazim
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Nijam Ahamad
 
Counsel for Opposite Party :- G.A.
 
(In chamber)
 

 
Hon'ble Vikas Kunvar Srivastav,J.

The case is called out.

Learned counsel for the bail-applicant Sri Nijam Ahamad, Advocate and learned A.G.A. for the State are connected through video conferencing and as such, they are in attendance and hearing of the Court.

The present bail application is filed on behalf of the accused-applicant-Nazim, who is involved in Case Crime No.365 of 2020, under Sections 457, 380 of I.P.C., registered at Police Station Kotwali Akbarpur, District Ambedkar Nagar.

The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Incharge Sessions Judge, Ambedkar Nagar vide order dated 03.11.2020. A copy of the bail application has already been received in the office of learned G.A.

Learned A.G.A. for the State informs that instructions is received to him and according to which, investigation in the matter has already been completed and charge sheet has already been submitted in the Court on 27.07.2020.

Learned counsel for the bail-applicant submitted that the present accused-applicant is not connected with the Case Crime No.365 of 2020, under Sections 457, 380 of I.P.C., registered at Police Station Kotwali Akbarpur, District Ambedkar Nagar lodged on the information of one Amit Chaurasia, the Manager of Ms. Prabha Automobiles, Patel Nagar, Tanda Road, Ambedkar Nagar.

Reading over the first information report, learned counsel for the bail-applicant further submitted that the informant reported theft of one T.V. Set i.e. LG MON022LP35OH and one Set-up Box (Duke Plus) in the night of 9/10 of July, 2020 by some unknown thieves. Learned counsel further submitted that the accused-applicant was booked in another Case Crime No.369 of 2020, under Sections 3/25 of Arms Act, registered by the Police of Police Station Akbarpur, District Ambedkar Nagar on 14.07.2020 at about 04:40 A.M. and arrest memo coupled with recovery memo was prepared by the police after alleged encounter with the present accused-applicant and other co-accused.

Learned counsel for the bail-applicant further submitted that so far as the recovery memo is concerned, several articles which remained unexplained by the present accused-applicant were reported but the subject matter of theft i.e. the LG T.V. and the Set-up Box reported vide F.I.R. No.365 of 2020, under Sections 457, 380 of I.P.C., registered at Police Station Kotwali Akbarpur, District Ambedkar Nagar dated 12.07.2020, is not shown to be recovered, therefore, the present accused-applicant could not be connected with the offence reported in aforesaid F.I.R. No.365 of 2020, under Sections 457, 380 of I.P.C., registered at Police Station Kotwali Akbarpur, District Ambedkar Nagar but his bail-application is rejected by the learned court of Sessions on the basis of arrest/recovery memo prepared by the police on 14.07.2020 in Case Crime No.369 of 2020, under Sections 3/25 of Arms Act, registered by the Police of Police Station Akbarpur, District Ambedkar Nagar aforesaid.

Learned counsel further submitted that in para 15 of the affidavit filed in support of bail-plea, the details of other cases pending against the accused-applicant is given. There are fifteen criminal cases, wherein the accused-applicant is arraigned. Learned counsel for the bail-applicant seeks release on bail on the ground that owing to the criminal antecedents of the present accused-applicant, he is falsely implicated in the Case Crime No.365 of 2020, under Sections 457, 380 of I.P.C., registered at Police Station Kotwali Akbarpur, District Ambedkar Nagar reported for the theft of LG T.V. and Set-up Box.

Charge sheet has already been submitted in the Court, wherein no evidence of recovery of the said stolen article is given. On this ground, learned counsel submitted that accused-applicant deserves to be released on bail, as even in the Case Crime No.369 of 2020, under Sections 3/25 of Arms Act, registered by the Police of Police Station Akbarpur, District Ambedkar Nagar, he has been granted bail by co-ordinate Bench of this Court vide order dated 12.04.2021 passed in Bail No.4227 of 2021.

Learned A.G.A. on the other hand submitted that the recovery memo itself discloses that the accused-applicant, when arrested, was equipped with tools and artisan of committing theft and information of reliable source of police was with regard to his complicity and involvement in several theft cases committed in the locality within a short span of time, therefore, he could not be released on bail.

Hearing the contention of learned A.G.A., learned counsel for the bail-applicant submitted that howsoever the strong may be the suspicion, it cannot take place of the evidences and so far as the investigation is concerned, it is completed by submission of charge sheet and there is no reasonable and reliable evidence as to the complicity of accused in the theft case, as reported in F.I.R. No.365 of 2020, under Sections 457, 380 of I.P.C., registered at Police Station Kotwali Akbarpur, District Ambedkar Nagar.

Having heard learned counsel for the parties and having perused the record, it is evident that on the basis of materials placed on record by the prosecution, prima facie the offence of theft, as reported in F.I.R. No.365 of 2020, under Sections 457, 380 of I.P.C., registered at Police Station Kotwali Akbarpur, District Ambedkar Nagar, it cannot be believed at this stage without further evidence to be tried in the trial court. Therefore, without commenting anything on merit of the case, as to the role of the accused-applicant in the offence and keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

Let applicant (Nazim) involved in Case Crime No.365 of 2020, under Sections 457, 380 of I.P.C., registered at Police Station Kotwali Akbarpur, District Ambedkar Nagar be released on bail on his furnishing personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(v) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Order Date :- 15.4.2021

Saurabh