Heard the learned counsel for the applicant and Shri G.D. Bhatt, learned AGA for the State-respondent.
The submission of the learned counsel for the applicant is that as per the version contained in the FIR, it is stated that two persons, namely, Anil Kumar Yadav and the applicant Anshu Yadav were found operating an illegal telephone exchange.
It is further submitted that on 2nd of April, 2019 certain inputs were received regarding a bomb threat from number 0522-4299300. Upon investigation, the aforesaid number was tracked and it was found that it was routed through the exchange being operated from Lucknow wherein Anil Kumar Yadav and the applicant were found to be operating telephone. It is in view of the aforesaid that the applicant and the other co-accused Anil Kumar Yadav were apprehended.
The submission is that the applicant alongwith Anil Kumar Yadav were only the electrician who were working for Abhishekh Dixit and Anurag Jaiswal who were not only providing the finance but also the infrastructure for operating that exchange. It is also submitted that the charge-sheet has been filed and in so far as Anil Kumar Yadav is concerned he had been granted bail by a Co-ordinate Bench of this Court in Bail Application No.5055 of 2019 by means of order dated 14.10.2020, a copy of which has been brought on record as annexure no.6.
It is further submitted that another co-accused who was not named in the first information report but upon investigation he was found operating the telephone exchange, namely, Kamlesh Yadav has also been enlarged on bail by a Co-ordinate Bench of this Court by means of Bail Application No.7807 of 2020 vide order dated 10.12.2020. The learned counsel also submits that Abhishekh Dixit and Anurag Jaiswal who had been operating the aforesaid telephone exchange, have also been granted bail by the Sessions Court and the copies of the said bail order have been brought on record as annexure nos.7 and 8. In the aforesaid facts and circumstances where the four co-accused have already been enlarged on bail and the applicant Anshu Yadav also having ascribed the similar role is also entitled to bail.
Shri G. D. Bhatt, learned A.G.A. has opposed the prayer for bail and it is submitted that in the counter-affidavit paragraph-3, it has been specifically stated that number from which call had originated was in the name of Cloud Infotel Engineering, Lucknow and the applicant is its proprietor. It has further been submitted that the applicant cannot claim parity since it is clear that the number from which the call had originated was in the name of Cloud Infotel Engineering of which the applicant is the proprietor whereas the aforesaid fact is not common to other co-accused. However, he could not dispute the fact that the four other co-accused have already been enlarged on bail.
Learned counsel for the applicant in rejoinder submits and has taken the Court to the contents of the rejoinder-affidavit specifically annexure nos.3 and 4 which are copies of the customer enrollment form. By referring to the aforesaid document, it is submitted that the applicants are mere workers and they were directed by their masters, namely, Abhishekh Dixit and Anurag Jaiswal to obtain a telephone connection. It is only for that limited purpose that they had purchased the telephone connection where they have been shown to be the proprietor whereas there is nothing on record to indicate any proprietorship of the applicant or of the co-accused Kamlesh Yadav.
It is further submitted that in so far as the other co-accused is concerned, namely, Kamlesh Yadav who also filled in a similar form and was shown as the proprietor. In case if the applicant is treated to be a proprietor then so also Kamlesh Yadav ought to be treated as a proprietor which has not been done and therefore the State-respondent cannot take a diabolical stand. It is further submitted that upon investigation the alleged call which was received on 2nd of April, 2019 was also found to be a hoax call and in the aforesaid matter the final report also been filed.
Considering the rival submissions, the facts and circumstances of the case and the material available on record as well as considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.
Let the applicant Anshu Yadav @ Nishu involved in Case Crime No.02 of 2019, under Sections 419, 420, 467, 468, 471, 120-B IPC and Section 3/6 Indian Wireless Telegraphy Act, 1933 and 4/20/25 Indian Telegraphic Act 1885 & 65/66-B Information Technology Act, 2008, Police Station A.T.S., District Lucknow be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned.
At the time of executing required sureties the following conditions shall be 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 neither influence any witness nor tamper with any evidence after his release.
(vi) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vii) The computer generated copy of such order shall be self attested by the counsel or the party concerned.
(viii) 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 :- 6.4.2021 ank