Heard learned Counsel for the applicants and learned A.G.A.
The applicants, namely, Ashish Kumar Srivastava @ Ashish Srivastava and Ankur Kumar Srivastava @ Ankur Srivastava apprehend their arrest in Case Crime No.0597 of 2019, under Sections 409, 420 IPC, Police Station Gomti Nagar, District Lucknow.
Brief facts of the case are that an FIR has been registered on 03.06.2019 at 18:37 at Police Station Gomti Nagar District Lucknow against the applicants in Case Crime No.0597 of 2019, under Sections 409, 420 IPC. In the year 2009, an advertisement was published for sale of plots in Jivandeep Project situated at Deva Road opposite Ram Swaroop University, Sultanpur Road, Gossaiganj Area, Gram Mohammadpur Ghadi near Rehmat Nagar railway crossing having its at B-21, 22 Keshav Complex, Sahara Shopping Centre opposite Sanjay Gandhipuram, Faizabad Road, Lucknow. In pursuance to the advertisement, the complainant booked a plot vide Plot No.JDC-A 220 measuring area 1000 sq. ft. for total sale consideration of Rs.3,54,000/- and deposited the same. The registration of the sale deed and mutation proceedings were also executed in favour of the complainant but when the complainant tried to get possession over the plot in question, he came to know that he has been cheated by the applicants by committing fraud.
Learned Counsel for the applicants has submitted that the applicants have been falsely implicated in this case. In the FIR, only general allegations have been assigned against them and other co-accused persons. The allegations levelled against the accused applicants in the FIR are purely civil in nature but knowingly and intentionally in order to make undue pressure to get undue advantage, the present FIR has been lodged on the basis of false and fabricated story.
Learned Counsel for the applicants has further submitted that the accused applicant Ashish Srivastava was running a private limited company in the name and title of R. Sons Infraland Developers Private Limited since 2009-10 in the field of Real Estate. According to the terms and conditions of the company, there was an agreement between the company and buyers by way of several schemes likewise for plot booking on the basis of payment of installments before execution of the sale deed of the plots and also there were some schemes in which after payment of certain amounts by the plots purchasers, the sale deed may have been executed but for providing possession over the plot in question, the purchaser was required to make full payment against the plot.
Learned Counsel for the applicant has again submitted that at the about 115 first information reports have been registered against applicant no.1 Ashish Srivastava at Police Stations Gomti Nagar and Ghazipur, District Lucknow whereas 59 first information reports have been lodged against accused applicant no.2 Ankur Kumar Srivastava. The allegations levelled in all the first information reports are identical in nature. In 59 cases, the applicant Ashish Srivastava is on bail. The applicant no.2 is also on bail in several cases. The details of which have been given in paras 21 and 22 of the affidavit filed in support of the bail application.
The investigation has already been completed and charge-sheet has been filed. As per the allegations levelled in the FIR, no offence under Sections 409, 420 IPC is made out. The entire story as mentioned in the FIR is highly unbelievable, improbable, suspicious and doubtful. There is no chance of absconding and tampering with the prosecution witnesses. In case, the applicant is released on bail, he shall settle the dispute within six months from the date of release. He will also abide by the conditions as imposed by the Court. The co-accused Tarun Kumar Sinha @ Tarun Sinha has already been enlarged on bail vide order dated 29.10.2020 passed by the learned Additional Sessions Judge, Court No.1, Lucknow.
Per contra, learned Counsel appearing on behalf of the State has vehemently opposed the bail prayer and submitted that the applicants have committed a series of crime having similar nature cheating the poor and innocent investors who invested their valuable money with a dream that they will have their own house or home in future. A large number of cases are pending against them. The allegations against the applicants are serious in nature as they have cheated several investors grabbing their valuable and hard earned money. The accused applicants are influential persons and in case, they are released on bail, certainly they can influence the witnesses and tamper the evidence. Therefore, they are not entitled for bail and the bail application is liable to be rejected in public interest.
I have considered the submissions of learned Counsel for the parties and perused the record.
In this case, the accused applicants have registered a company in the name and style R. Sons Infraland Developers Private Limited in the year 2009-10 and an advertisement was published for sale of residential plots. In pursuance thereof, the complainant including hundreds of people booked residential plots as per the terms and conditions of the company but they have not been given possession even after execution of the sale deed and completion of mutation proceedings. More than 174 cases have been registered against the accused applicants.
In the case of Ram Govind Upadhyay vs Sudarshan Singh; (2002) 3 SCC 598, it has been clearly laid down that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter.
In the case of Prahlad Singh Bhati vs NCT of Delhi; (2001) 4 SCC 280, Hon'ble Supreme Court has laid down the following principles:-
"(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
Hon'ble Supreme Court in the case of Neeru Yadav vs State of U.P. and another; (2014) 16 SCC 508 on the point of criminal antecedents of the accused is also a guiding factor which has to be considered by the Court while considering the bail application of the accused and has drawn the attention of the Court towards para-18 of the said judgment which is quoted hereinbelow:-
"First, we shall dwell upon the criminal antecedents. The appellant, the real victim, being the wife of the deceased, has annexed a chart relating to the criminal history of the accused. The State has filed a counter affidavit. We think it apt to refer to the cases which find place in the counter affidavit filed by the state. Be it clarified though it has been filed as a counter affidavit, it is not in oppugnation of the prayer sought in the petition. On the contrary, it is supportive of the stand put forth in the petition. It has been asseverated that the respondent no.2 is a history-sheeter and number of cases have been lodged against him......
In the reply filed by the respondent no.2 contended, inter alia, that he has been acquitted in certain case. However, in the course of hearing, we have been apprised that most of the cases instituted against the respondent no.2 are still pending and some of them are under Section 302 IPC and other heinous offences."
In case of Ash Mohammad vs Shiv Raj Singh; (2012) 9 SCC 446, Hon'ble Supreme Court has held as follows:
"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized.
The life of an individual living in a society governed by Rule of Law has to be regulated and such Regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".
It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires.
Adverting to the contentions raised by the learned counsel for the respective parties and after carefully going through the materials available on record, it appears that the applicants have played a very vital role in misappropriation of huge amount of money which was collected from the innocent and poor peoples/investors under the promise to provide them residential plots.
Without detailed examination of evidence on record and elaborate discussions on merits of the case, but considering the nature and gravity of the accusation, the nature of supporting evidence, availability of prima facie case against the applicants, the severity of punishment in case of conviction and since huge amount of poor and innocent investors has been misappropriated and the investors have been duped of their hard earned money in a preplanned manner and taking into account the reasonable apprehension of the applicants in tampering with the evidence and above all in the larger interest of society, I am not inclined to release the applicants on bail.
Accordingly, the bail application sans merit and hence stands rejected.
Observations made hereinabove is exclusively for deciding the instant bail application and shall not affect the trial in any manner.
Order Date :- 28.7.2021 akverma