Rahul Nunera vs State Of U.P.
2021 Latest Caselaw 8002 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 68
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19398 of 2021
 

 
Applicant :- Rahul Nunera
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Amit Kumar Shukla
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Amit Kumar Shukla, Manoj Kumar Dwivedi, learned counsel for the applicant and learned A.G.A. Perused the record.

This application has been filed seeking the release of the applicants on bail in Case Crime No. 543 of 2020, under Section 2/ 3 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, Police Station Kalan, District Shahjahanpur.

The submission of the learned counsel for the applicant is that the applicant is innocent and has been implicated in the present case due to ulterior motive and harassment by police of the concerned station by implicating the applicant in the present case as well as implicated the applicant in other cases as per the Gang-chart which approved by the District Magistrate on 12.0.12.2020 in which five case have been shown against him. Photocopy of the said Gang-chart is being annexed as annexure no. 2 to the affidavit accompanying the bail application which reveals five cases; 1. Case Crime No. 327 of 2020 under Section 457, 380, 411 I.P.C., P.S. Kalan, District Shahjahanpur ; 2. Case Crime no. 331 of 2020 under Sections 307/34 I.P.C.,P.S. Kalan, District Shahjahanpur; 3.Case Crime no. 332 of 2020 under Sections 411,413 I.P.C.,P.S. Kalan , District Shahjahanpur; 4. Case Crime no. 428 of 2019 under Sections 457,380 I.P.C.,P.S. Kalan, District Shahjahanpur ; 5. Case Crime no.171 of 2020 under Sections 457,380 I.P.C.,P.S. Kalan, District Shahjahanpur in all the aforesaid case, the applicant has been granted bail by the court below by orders dated 24.09.2020, 24.08.2020, 24.09.2020, 24.09.2020 and 07.09.2020. A photocopy of the bail orders of the applicant are being collectively filed and marked as annexure no.3 to the affidavit accompanying the bail application. It is also pertinent to mention that besides the above mentioned cases, a case being Case Crime No. No. 335 of 2020 under Sections 3/25/27 Arms Act , P.S. Kalan District Shahjahanpur is pending and in that case too, the applicant is on bail by the order dated 10.09.2020 by the court. A copy of the said order being filed as annexure no. 4 to the affidavit accompanying the bail application. It is also submitted that the applicant is not a gangster and has never acted or conducted himself as such. Further submission is that as the applicant has already been released on bail in the said case on the basis of which the provisions of the Act were imposed, it shall not be much justified to continue the incarceration of the applicant . Further, it has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the Court whenever required and is ready to accept all the conditions which the Court may deem fit. The applicant is languishing in Jail since 10.01.2021. There is no likelihood of early conclusion.

Learned A.G.A. has opposed the prayer for bail but could not dispute the fact of applicant having been released on bail in all the aforesaid criminal case and he could not point out any other criminal case except the aforesaid criminal cases.

After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence and larger mandate of the Article 21 of the Constitution of India.

It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay, (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative" and considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.

Without expressing any opinion on the merits of the case, let the applicant- Rahul Nunera involved in Case Crime No. 543 of 2020, under Section 2/ 3 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986, Police Station Kalan, District Shahjahanpur be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

(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 misuses 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 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 him in accordance with law.

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

(vi) The computer generated copy of this 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.

It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

Order Date :- 15.7.2021

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