Allahabad High Court
Dharmendra Mali vs State Of U.P. on 17 March, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 28
Case :- BAIL No. - 3232 of 2021
Applicant :- Dharmendra Mali
Opposite Party :- State of U.P.
Counsel for Applicant :- Ramakar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out.
Heard learned counsel for the bail-applicant Sri Ramakar Shukla, Advocate, learned A.G.A. for the State Ms. Nikita Mishra, Advocate and perused the record.
The present bail application is filed on behalf of the accused-applicant-Dharmendra Mali, who is involved in Case Crime No.412/2020, under Sections 419, 420, 465, 467, 468, 471, 34 of I.P.C. and Sections 66, 66C and 66D of I.T. Act, registered at Police Station Gauriganj, District Amethi.
The occasion of present bail application has arisen on rejection of bail plea of accused-applicant by learned Additional District and Sessions Judge/Special Judge, POCSO Act, Court No.12, Sultanpur vide order dated 11.11.2020. A copy of bail application has already been received in the office of learned G.A., pursuant thereto, learned A.G.A. for the State is present to protest the bail-application. Instructions is received to her and she is possessed with the relevant papers available on case diary of the case.
Learned counsel for the applicant reading over the first information report lodged by the complainant with regard to the incident dated 29.02.2020 submitted that he went to the A.T.M. of Bank of Baroda to get statement of account, at that time two unknown persons were present behind him and when he went out from A.T.M., immediately, he got message on his mobile phone at 03:35 P.M. and 03:36 P.M. with regard to the withdrawal of amount Rs.20,000/- and Rs.10,000/- respectively. Learned counsel further drew attention that the first information report of said incident was not alleged promptly by the complainant rather after a considerable lapse of time, on 26.08.2020, information was lodged.
Learned counsel further drew attention towards the arrest and recovery memo purportedly to show the arrest of present accused-applicant alongwith two other co-accused namely Lav Kumar and Akash Tiwari dated 27.08.2020. The lodging of F.I.R. belatedly on 26.08.2020 and subsequent thereto arrest memo dated 27.08.2020 both have no plausible explanation as to the nexus that the incident reported wherein the arrest is shown by the police.
Learned counsel further submitted that accused-applicant is not a local resident of Amethi or Sultanpur District but is a local resident of district Chandauli and as a source of livelihood, he profess to drive taxi for customer who hire for his services and on the date of alleged arrest i.e. 27.08.2020, the other two co-accused hired his taxi and he was plying the same, as his profession is taxi driver.
Learned counsel further submitted that the arrest and recovery memo dated 27.08.2020 itself shows that equipment of card reading and scratching, through which, the offence likely to be alleged in the first information report and recovery memo that he committed, was shown only with the co-accused and the money recovered from pocket of the wearing apparel of the present accused-applicant is belonging to him, as he was professing on from the taxi driver.
Learned counsel further submitted that the accused-applicant is in jail since 27.08.2020 for no fault on him, so far as the criminal case, shown against him by the police, it was leveled against the present accused-applicant only after his arrest and no criminal antecedent is reported earlier to the present case. Learned counsel further submitted that the accused-applicant is not concerned with the other co-accused and his case is distinguishable with that of the co-accused Lav Kumar and Akash Tiwari with whom the equipments for committing offence reported in the F.I.R. and the recovery memo is shown.
Learned A.G.A. on the other hand protesting the bail-application submitted on the ground that the present accused-applicant may be of gang, committing such offence like fraudulent A.T.M. withdrawal using forced A.T.M. cards, etc. He is arrested with the other co-accused with whom the equipment of fraud is recovered, therefore, the accused-applicant could not be presumed innocent at this stage. However, learned A.G.A. submitted that the investigation is completed and charge sheet in the case has already been submitted in the court concerned.
Learned counsel in rebuttal to the argument made by learned A.G.A. submitted that the accused-applicant is a common man, is not in a position to adversely affect the witnesses, who are police personnels themselves and public officers, moreover, the evidences are also to be laid by the prosecution, therefore, there is no question of tampering of evidence and the accused-applicant is ready and willing to participate in the trial and for which purpose, if he is released on bail, he will ensure to appear in the Court as and when required.
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 (Dharmendra Mali) involved in Case Crime No.412/2020, under Sections 419, 420, 465, 467, 468, 471, 34 of I.P.C. and Sections 66, 66C and 66D of I.T. Act, registered at Police Station Gauriganj, District Amethi 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 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.
Order Date :- 17.3.2021/Saurabh
