Hotam Singh Tomar vs State Of U.P.
2021 Latest Caselaw 425 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 89
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 225 of 2021
 

 
Applicant :- Hotam Singh Tomar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Raghubir Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Raghubir Singh, learned counsel for applicant and learned A.G.A. for State.

This application for anticipatory bail has been filed by applicant Hotam Singh Tomar in connection with Case Crime No.63 of 2020, under Sections - 3/4 Public Gambling Act, 147, 148, 307 I.P.C. and 12 of U.P. D.A.A. Act, Police Station- Nibohara, District-Agra.

At the outset, learned counsel for applicant submits that co-accused Chhatrapal and two others have been enlarged on anticipatory bail by this Court vide order dated 18.12.2020 passed in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No.9704 of 2020.

For ready reference, order dated 18.12.2020 is reproduced hereinunder:-

"Heard learned counsel for the applicants and learned AGA for the State.

Order on Criminal Misc. Exemption Application

This exemption application is allowed.

Order on Criminal Misc. Anticipatory Bail Application

The instant anticipatory bail application has been filed on behalf of the applicants, Chhatrapal, Mahendra Singh and Yadav Singh, with a prayer to release them on bail in Case Crime No. 0063 of 2020, under Section- 12 of U.P. Dacoity Affected Areas Act, 1983, Sections 307, 149, 148 and 147 and Sections 3 Public Gambling Act, 1867, Police Station- Nibora, District- Agra, during pendency of trial.

There is allegation in the FIR that accused persons were gambling in the field. When the police reached at the spot, they fired on police party.

Learned counsel for the applicants has submitted that applicants have been falsely implicated in this case on the basis of confessional statement of co-accused. They were named in the FIR. They have no criminal history to their credits. The applicants have definite apprehension that they may be arrested by the police any time.

Learned AGA has opposed the prayer for anticipatory bail of the applicants, but could not dispute the aforesaid facts.

Hence the applicant is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and order dated 22.05.2020 passed by this Court in Criminal Misc. Anticipatory Bail Application No.2609 of 2020. The future contingencies regarding anticipatory bail being granted to applicants shall also be taken care of as per the aforesaid judgment of the Apex Court.

Without expressing any opinion on the merits of the case and considering the nature of accusations and their antecedents, the applicants are entitled to be released on anticipatory bail in this case.

Let the applicants involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

1. The applicants shall not leave India during the currency of trial without prior permission from the concerned trial Court.

2. The applicants shall surrender his passport, if any, to the concerned trial Court forthwith. Their passport will remain in custody of the concerned trial Court.

3. That 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 them from disclosing such facts to the Court or to any police officer;

4. The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicants.

5. In case, the applicants misuses the liberty of bail, the trial Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

6. The applicants 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of their bail and proceed against them in accordance with law.

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

8. 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."

Learned counsel for applicant contends that case of present applicant is similar and identical to above mentioned co-accused. On the aforesaid premise, it is urged that present applicant is also liable to be extended benefit of anticipatory bail on the ground of parity.

Per contra, learned A.G.A. has opposed the prayer for bail, but could not dispute the facts as noted above.

Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.

Let the applicant- Hotam Singh Tomar be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 8.1.2021

Anil K. Sharma