Shri J.H. Khan, learned Advocate has filed his power on behalf of applicant along with affidavit dated 06.04.2021, which is taken on record.
Heard Shri W.H. Khan, learned Senior Counsel assisted by Shri J.H. Khan and Shri Amit Kumar Dixit, learned counsel appearing on behalf of applicant; learned Additional Government Advocate representing the State and perused the record of the case.
By means of this application, the applicant, Afaq @ Nadeem, who is involved in Case Crime No. 539 of 2020, under Sections 379, 411 IPC, Police Station-Kotwali, District-Fatehpur, is seeking enlargement on bail during the trial.
It is submitted by learned counsel for the applicant that one Manish Kumar Devvanshi has given an application to Police Station-Kotwali, District-Fatehpur regarding missing of his Apache motorcycle No. UP71 Y 3001 against unknown person, but on the said application no F.I.R. was registered by the Police. It is next submitted that on 14.08.2020, Police has apprehended four persons including the applicant and on their pointing out recovery of 25 motorcycles has been made including one Apache motorcycle of without number plate. Later on, the said Apache motorcycle was connected with the application dated 01.08.2020 given by Manish Kumar Devvanshi regarding missing of his motorcycle and thereafter on 15.08.2020, F.I.R. was lodged as Case Crime No. 0539 of 2020, under Section 379 I.P.C. against one unknown person. The main substratum of argument of learned counsel for the applicant is that the applicant has been falsely implicated in this case because it is admitted case of the prosecution that on 14.08.2020, Police has shown the recovery of motorcycle in question from the possession of the applicant, but while registering the F.I.R. on 15.08.2021 under Section 379 I.P.C., name of applicant has not been mentioned in the F.I.R. and the F.I.R. has been lodged against unknown person and reference of aforesaid recovery has not been mentioned in the F.I.R. dated 15.08.2020. It is next submitted that apart from the aforesaid case the applicant was also implicated in three other cases being Case Crime No. 134 of 2020, under Section 379, 411 I.P.C.,Police Station-Bisanda, District-Banda, in which the applicant has been granted bail vide order dated 14.12.2020 by the co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 45721 of 2020; Case Crime No. 135 of 2020, under Sections 379, 411, 419, 420, 467, 471 I.P.C. Police Station-Bisanda, District-Banda, in which the applicant has been granted bail vide order dated 03.12.2020 by the co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 42600 of 2020 and on the basis of said cases the applicant has been implicated in Case Crime No. 195 of 2020, under Section 2/3 of U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986, Police Station-Bisanda, District-Banda, in which also the applicant has been granted bail vide order dated 18.01.2021 by the co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 2982 of 2021. Much emphasis has been given that prior to lodging of F.I.R. of this case on 15.08.2020, the applicant was not having any criminal history. The applicant is languishing in jail since 14.08.2020 and in case he is enlarged on bail he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the bail prayer of the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Afaq @ Nadeem 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 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 :- 7.4.2021 Sunil Kr. Gupta