Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12693 of 2021 Applicant :- Dilip Singh Opposite Party :- State of U.P.
Counsel for Applicant :- Rajiv Lochan Shukla,Akash Dwivedi,Vivek Sharma Counsel for Opposite Party :- G.A.,D.M.Tripathi
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Rajiv Lochan Shukla, learned counsel for the applicant and learned A.G.A. through video conferencing and perused the record.Video link sent to D.M.Tripathi, learned counsel for the informant remained non-responsive.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.171 of 2020, under Sections 420, 467, 468, 471, 120-B and 506 of I.P.C., Police Station-Refinery, District-Mathura after rejection of his Bail Application vide order dated 19.11.2020 passed by learned Additional Sessions Judge, Court No.1, Mathura.
3. Allegations against the applicant are that he was part of conspiracy in executing a fraudulent and forged power of attorney on 08.5.2020 supposedly executed by first informant in favour of one co-accused namely Sonu and on the basis of said power of attorney, co-accused Sonu executed number of sale deeds of the land belonging to first informant to different vendees on a meagre price. The applicant is also signatory to the said sale deeds.
4. Learned counsel for the applicant submitted that the applicant is not the beneficiary either in terms of land or money. The power of attorney executed by the first informant in favour of his wife was cancelled on 11.5.2020 by the first informant himself and on the same date, a fresh power of attorney was executed in favour of co-accused Sonu. The offences are triable by Magistrate of First Class. Charge-sheet has already been filed. The case of the prosecution is mainly based on the documentary evidence which are in possession of the prosecution. Bail has already been granted to the similarly situated co-accused Virendra Chhavadia and Rajveer Chhabadiya vide orders dated 03.2.2021 passed in Criminal Misc. Bail Application Nos.47335 of 2020 and 503 of 2021 respectively. The applicant has no other reported criminal antecedent and he is languishing in jail since 19.10.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
5. Learned A.G.A. has vehemently opposed the bail application and submits that applicant and other co-accused are related to each other and by means of forged power of attorney of the first informant, they got transferred the land of the informant in favour of many vendees for a meagre price. There are electronic evidence against the applicant in the form of CCTV footage and telephonic conversations also. However, he has not disputed that the co-accused has been granted bail by this Court.
6. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
7. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that the case is arising out of civil transaction, the role of the applicant is of a witness to the sale deed allegedly executed on the basis of forged power of attorney. The case of the prosecution mainly rests upon documentary evidence. Applicant has no criminal history. He is in jail since 19.10.2020 and further considering that bail has already been granted to the other two co-accused and also keeping in view of prevailing situation due to surge in Covid-19 cases, a case of bail is made out.
8. Let the applicant Dilip Singh, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229- A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
9. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
10. The bail application is allowed.
11. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
12. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
13. 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.
14. The observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 18.5.2021 SB