Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32194 of 2021 Applicant :- Dhanesh Chaudhary Opposite Party :- State of U.P.
Counsel for Applicant :- Pankaj Kumar Yadav Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Due to inadvertence and oversight of the Office, the Criminal Misc. Bail Application No. appears to be 22194 of 2021 in the file cover of the aforesaid bail application, whereas, it should be Criminal Misc. Bail Application No. 32194 of 2021.
The order passed in Criminal Misc. Bail Application No. 22194 of 2021, is canceled/deleted and the mistake of the office, is hereby rectified.
Now, the order passed in Criminal Misc. Bail Application No. 32194 of 2021, which is as under:-
Heard Sri Pankaj Kumar Yadav, learned counsel for the applicant, learned A.G.A. for the State and perused material on record.
The present bail application has been filed on behalf of applicant Dhanesh Chaudhary under Section 439 of The Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No.291 of 2021 under Sections 380, 411, 461 of the Indian Penal Code, registered at Police Station Kasaya, District Kushinagar, during pendency of the trial.
An exemption application has been filed on behalf of the applicant along with present application for exempting the filing of certified copy of the F.I.R. as it could not be made available to the applicant due to COVID-19.
The exemption application is allowed. The filing of certified copy of the F.I.R. is hereby exempted.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that no incriminating article has been recovered from the possession or on the pointing out of the applicant; alleged recovery of Rs.4,17,000/- is made without complying the mandatory provisions of Section 100 Cr.P.C; there is no independent/public witness of the alleged recovery. The aforesaid cash has been taken away by the police from the house of the applicant which has been arranged for the marriage of his cousin which was scheduled to take place on 20.4.2021. After arrest of the applicant on the basis of the same recovery in respect of case crime no.142 of 2021 under Sections 406, 413, 34 I.P.C, P.S, Kasaya, District Kushinagar in which the applicant has been granted bail by this Court in Criminal Misc. Bail Application No.32261 of 2021 vide order dated 31.08.2021. It is further submitted that co- accused Sanjeev Soni, having identical role, has been granted bail by this Court in Criminal Misc. Bail Application No.24230 of 2021 vide order dated 10.08.2021, the applicant is also entitled to be released on bail. The applicant is languishing in Jail since 06.05.2021. Charge-sheet has been submitted against the applicant and co-accused Rahul, as such, he is no more required for the purposes of investigation. In case, the applicant is released on bail, he will not misuse the liberty of bail.
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative" and considering the facts of the present case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Dhanesh Chaudhary be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) 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 or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) 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 of Cr.P.C.
(iv) 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 the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
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 :- 23.9.2021 aks