Court No. - 90
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9005 of 2021 Applicant :- Afsar Jamal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar Chaubey Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Pathak,J.
Sri Abhishek Kumar Chaubey, learned counsel for the applicant and learned A.G.A. are present through video conferencing.
Exemption application filed by applicant, seeking exemption from filing the certified copy of F.I.R., is hereby allowed.
The instant anticipatory bail application has been filed on behalf of the applicant -Afsar Jamal, with a prayer to release him on bail in Case Crime No. 0101 of 2021, under Sections 170, 420 IPC, Police Station- Baghpat, District- Baghpat, during pendency of trial.
As per FIR version first informant (PRO to SSP) has received a call from Mobile No. 9971580749 at about 21.05 hour, on the Mobile No. 9454400258. Caller from the other side pretending himself as Justice Khanna and asked for the release of one accused Ravindra Singh.
It is submitted by learned counsel for the applicant that the applicant has no concern with the mobile No. 9971580749, which was used in the commission of alleged crime as mentioned in the FIR. The aforesaid mobile number is neither allotted to the present applicant nor the alleged mobile is recovered from the physical possession of the present applicant. It is further submitted that the name of present applicant has emerged on the basis of statement of co-accused Khalid Hasan and Samay Singh from whose possession alleged mobile number has been shown to be recovered. It is next submitted that the present applicant has falsely been implicated in the present matter on the basis of a false and fictitious FIR, with an ulterior motive. It is also submitted that he has no concerned with the alleged accused Ravindra Singh, who has been asked for release through the alleged call received on the mobile of SSP, as mentioned in the FIR. In paragraph no.12 of the affidavit, it is stated that present applicant is innocent and he has no criminal history except the present case. There is no chance of applicant fleeing away from judicial process or tampering with prosecution evidence. He undertakes to appear personally on each and every date and also not seek any unnecessary adjournment during trial. In case, he is enlarged on bail, he will not misuse liberty of bail. Bar as embodied under Section 438(6) of Cr.P.C. or in any other law/rules is not attracted in the present matter in granting the anticipatory bail. There is an apprehension of arrest of the applicant in the present matter.
Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application by contending that from the face of FIR itself culpability of the present applicant is made out and setting him free during investigation would not be appropriate and cause damage/harm to the prosecution. Innocence of the applicant cannot be adjudicated at pre-trial stage, therefore, he does not deserve any indulgence. Learned A.G.A. has not raised any objection qua criminal history of the present applicant as stated by counsel for the applicant.
Upon hearing learned counsel for the parties, perusal of record on board and considering the nature of accusation and complicity of the accused in totality of the facts and circumstances of the present case, without expressing any opinion on the merits of the case at this stage, and also seeing the present surge in the cases of novel coronavirus and possibility of further surge of the pandemic, I find it appropriate to release the present applicant 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. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
Accordingly, the present application is allowed. In the event of arrest, the applicant -Afsar Jamal involved in the aforesaid case, shall be released on anticipatory bail till submission of police report under Section 173(2) Cr.P.C., on his 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 applicant shall not leave the country during the investigation without prior permission from the concerned trial Court.
2. The applicant shall surrender his passports, if any, to the concerned Court/Investigating Officer forthwith. His passports will remain in custody of the concerned Court/Investigating Officer.
3. That the applicant 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 him from disclosing such facts to the Court or to any police officer;
4. The applicant shall co-operate with the investigation and make himself available for interrogation by a police officer as and when required. he shall not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the Investigating Officer.
5. The applicant shall file an undertaking to the effect that he shall not seek unnecessary 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 applicant.
6. In case, the applicant misuses the liberty of bail, the 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 and the Government Advocate/informant/complainant can file bail cancellation application.
7. 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, 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 him in accordance with law.
8. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
9. 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.
Order Date :- 12.5.2021 AK Pandey