Allahabad High Court

Atul Singh vs State Of U.P. on 7 November, 2024

Author: Rajeev Misra

Bench: Rajeev Misra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:174838
 
Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34884 of 2024
 

 
Applicant :- Atul Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- B.S. Pandey,Kartikey Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Kartikey Pandey, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Second supplementary affidavit filed by learned counsel for applicant in Court today is taken on record.

3. Perused the record.

4. This application for bail has been filed by applicant-Atul Singh seeking his enlargement on bail in Case Crime No. 1502 of 2018 under Sections 386, 419, 420 I.P.C., Section 8/13 Prevention of Corruption Act and Section 66 C Information Technology (Amendment) Act, Police Station-Kavinagar, District-Ghaziabad, during the pendency of trial..

5. At the very outset, the learned counsel for applicant submits that co-accused Devendra Pratap Singh @ Sintu @ Dev Singh has already been enlarged on bail by this Court vide order dated 16.07.2024 passed in Criminal Misc. Bail Application No.24683 of 2024 (Devendra Pratap Singh @ Sintu @ Dev Singh Vs. State of U.P.). For ready reference the order dated 16.07.2024 is reproduced herein-below:

" 1. Heard Mr. Adarsh Bhushan along with Mr. Sunil Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State opposite party 1.

2. Perused the record.

3. This application for bail has been filed by applicant Devendra Pratap Singh @ Sintu @ Dev Singh seeking his enlargement on bail in Case Crime No. 1502 of 2018, under Sections 386, 419, 420 IPC, Section 8 Prevention of Corruption Act, 1988 and Section 66C Information of Technology (Amendment) Act, 2008, Police Station-Kavi Nagar, District-Commissionerate (Ghaziabad), during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 23.7.2018, a prompt F.I.R. dated 23.7.2018 was lodged by first informant Dharmendra Chauhan (Circle Officer) and was registered as Case Crime No. 1502 of 2018, under Sections 386, 419, 420 IPC, Sections 8/13 Prevention of Corruption Act, 1988 and Section 66C Information of Technology (Amendment) Act, 2008, Police Station-Kavi Nagar, District-Commissionerate (Ghaziabad). In the aforementioned F.I.R. one person namely Brajbhan Singh alias Kaptan has been nominated as solitary named accused.

5. Learned counsel for applicant contends that applicant is not named in the aforementioned F.I.R. However, after completion of statutory investigation of aforementioned case crime number, Investigating Officer submitted the police report dated 18.9.2018. However, in the aforementioned police report, an observation was made that since the name of the applicant has also surfaced in the crime in question during course of investigation, therefore, investigation against the present applicant is pending.

6. After submission of aforementioned police report, the trial of the main charge sheeted accused commenced. He was, ultimately, convicted by Court below, vide judgement and order dated 15.3.2023 passed by Additional Sessions Judge/Special Judge, Special Court No. 2 (Prevention of Corruption) Act, Meerut in Special Case No. 159 of 2018 (State Vs. Brajbhan Singh alias Kaptan).

7. Feeling aggrieved by aforesaid jdugement and order, the convicted accused approached this Court by means of a Criminal Appeal, which was registered as Criminal Appeal No. 3133 of 2023 (Brajbhan alias Kaptan Vs. State of U.P.). Aforementioned appellant was enlarged on bail, vide order dated 29.3.2023 passed by this Court. For ready reference, the same is reproduced herein under:-

"Order on Criminal Appeal:-

Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

This criminal appeal has been filed against the judgment and order dated 15.03.2023 passed by learned Additional Sessions Judge/ Special Judge (Prevention of Corruption Act), Special Court No. 02, Meerut in Special Criminal Case No. 159 of 2018 (State of U.P. Vs. Brajbhan Singh @ Kaptan), arising out of Case Crime No. 1502 of 2018, under Sections 386, 419, 420 IPC, Section 8 of Prevention of Corruption Act and Section 66-C of Information Technology (Amendment) Act, Police Station Kavi Nagar, District Meerut, by which the appellant has been convicted for the offence under Section 385 IPC and awarded the sentence of two years simple imprisonment and a fine of Rs. 2,000/-, under Section 419/511 IPC and awarded the sentence of one year and six months simple imprisonment and a fine of Rs. 2,000/- with default stipulations. All the sentences have been directed to run concurrently.

Admit.

Summon the lower court record.

List immediately after receipt of the record.

Order on Application for Suspension of Sentence:-

Learned counsel for the appellant has submitted that learned court below has not appreciated the evidence and material on record in right perspective and has illegally passed the impugned judgment and order dated 15.03.2023 convicting and sentencing the appellant.

Learned counsel for the appellant has next submitted that maximum sentence awarded to the appellant is that of two years along with fine and the appellant has remained in jail for about three months during trial and thereafter, has remained in jail for 13 days after conviction.

Learned counsel for the appellant has further submitted that the appeal is of the year 2023 and the chances of appeal being heard and decided in near future is very bleak due to heavy dockets, as such, the appellant be released on bail.

Per contra, learned AGA could not dispute the aforesaid facts and the fact that maximum sentence awarded to the appellant is two years and he has no criminal history to his credit and the appellant has remained in jail for about three months during trial and thereafter, has remained in jail for 13 days after conviction.

Having considered the rival submissions made by learned counsel for the parties and on perusal of the record, it is evident that maximum sentence awarded to the appellant is only for a period of two years and the appellant has remained in jail for about three months during trial and thereafter, has remained in jail for 13 days after conviction. The final disposal of the appeal will take a long time on account of heavy dockets, as such, the appellant has made out a case for bail.

The prayer for suspension of sentence is accordingly allowed.

Let the appellant Brajbhan Singh @ Kaptan be released on bail in the aforesaid case crime number on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned subject to deposition of entire amount of fine, if already not deposited.

On acceptance of the bail bonds, the court below shall transmit the xerox copies thereof to this Court for being kept on record.

Office is directed to send a soft copy of this bail order by e-mail to the appellant through the Jail Superintendent concerned."

8. After the judgement dated 15.3.2023 was pronounced by Court below, applicant was arrested by the police on 1.6.2024 and ultimately supplementary police report in terms of Section 173 (2) Cr. P. C. was submitted against applicant on 28.6.2024.

9. On the above conspectus, it is urged by Mr. Adarsh Bhushan, the learned counsel for applicant that perusal of record clearly goes to show that named/'charge sheeted accused Brajbhan Singh alias Kaptan has not been convicted under any Section of Prevention of Corruption Act or Section 66 C of I.T. Act. Furthermore, once the prime accused has not been convicted under aforesaid Sections, then the applicant being an ancillary accused could not have been charge sheeted under aforementioned Sections of Prevention of Corruption Act. Furthermore, the basis of prosecution of applicant is the confessional statement of the prime accused before the Investigating Officer, which is otherwise not admissible in evidence. He, therefore, contends that there is an unexplained delay of almost 6 years in submitting police report in terms of Section 173 (2) Cr. P. C. At this stage, he has referred to the judgements of Apex Court in P. Rajagopal Vs. State of Tamil Nadu, (2019) 5 SCC, 403 and P. Ramchandra Rao Vs. State of Karnataka, (2002) 4 SCC 578, on the basis thereof He contends that since there is unexplained delay in prosecution of the applicant, therefore, the very prosecution of the applicant cannot be maintained. The applicant is a private person and therefore, the provisions of Prevention of Corruption Act cannot be invoked against the applicant.

10. Applicant has criminal history of 8 cases, which has been duly explained. Police report in terms of Section 173 (2) Cr. P. C. has already been submitted. therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

11. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

9. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that since applicant is a private person, therefore, prima facie provisions of Sections 13 (1) (b) and 13 (1) (2) of Prevention Act cannot be invoked against the applicant, the main named and charge sheeted accused has not been convicted under the provisions of Prevention of Corruption Act, the only evidence that has emerged against applicant is the confessional statement of the convicted accused, which is otherwise not admissible as the same cannot be proved in Court of law, the explained criminal history of applicant, the period of incarceration undergone, the police report in terms of Section 173 (2) Cr. P. C., has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record, necessitating the custodial arrest of applicant during the pendency of trial, the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

10. Accordingly, the bail application is allowed.

11. Let the applicant Devendra Pratap Singh @ Sintu @ Dev Singh be released on bail in the aforesaid case crime number 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 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.

12. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 16.7.2024 "

6. Learned counsel for applicant contends that case of present applicant is similar and identical to that of bailed out co-accused Devendra Pratap Singh @ Sintu @ Dev Singh. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid bailed out co-accused so as to deny him bail. On the above premise, the learned counsel for applicant contends that in view of above and for the facts and reasons recorded in the bail order dated 16.07.2024 of co-accused Devendra Pratap Singh @ Sintu @ Dev Singh, applicant is also liable to be enlarged on bail on the ground of parity.

7. It is further submitted by the learned counsel for applicant that applicant-Atul Singh has criminal history of some cases, which have been sufficiently explained in the second supplementary affidavit. Applicant is in custody since 10.07.2024. As such, he has undergone more than 3 and a half months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted by the Investigating Officer, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, he thus submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

8. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed this application for bail. Learned A.G.A. submits that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant, as noted herein above as well as the the facts and reasons recorded in the order dated 16.07.2024 with reference to the record at this stage.

9. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that not named but charge sheeted co- accused Devendra Pratap Singh @ Sintu @ Dev Singh has already been enlarged on bail by this Court vide order dated 16.07.2024, the case of present applicant is prima facie similar and identical to aforementioned co-accused, the learned A.G.A. could not point out any such distinguishing feature on the basis of which the case of present applicant could be so distinguished from aforesaid bailed out co-accused so as to deny him bail, in view of above and the for the facts and reasons recorded in the order dated 16.07.2024 prima-facie applicant is liable to be enlarged on bail on the ground of parity, the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallized, however irrespective of above, the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

10. Accordingly, present application for bail is allowed.

11. Let the applicant-Atul Singh involved in aforesaid case crime number 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 which are being imposed in the interest of justice:-

(i) Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

12. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison

Order Date :- 7.11.2024