Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4632 of 2021
Applicant :- Gorakh Nath Singh
Opposite Party :- State of U.P.
Counsel for Applicant :- Mohd Raghib Ali,Saghir Ahmad(Senior Adv.)
Counsel for Opposite Party :- G.A.,Jitendra Shankar Pandey,A\J0218
Hon'ble Saurabh Shyam Shamshery,J.
1. The Court is presently working through virtual mode only due to surge in Covid-19 cases.
2. Heard Shri Saghir Ahmad, learned Senior Advocate assisted by Mohd. Raghib Ali, learned counsel for applicant and learned A.G.A. through video conferencing.
3. This bail application under Section 439 of Code of Criminal Procedure is filed by the applicant seeking enlargement on bail during trial in connection with Case Crime No. 274 of 2020, under Sections 420, 467, 468, 471 and 506 IPC, Police Station - Jhunsi, District - Prayagraj.
4. The contents of First Information Report discloses that the complainant executed a sale deed of 960 sq. metres in favour of the applicant on 19.5.2016, however, applicant fraudulently sold about 1831 sq. metres land to the different vendees who were also named as accused in the First Information Report. After investigation, charge sheet is filed only against applicant. It is further submitted that applicant has neither cheated the complainant nor used any forged document as genuine in order to execute sale deed in favour of different vendees. Therefore, even prima facie, no case is made out against applicant u/s 420, 467 and 468 IPC and case, if any, would be make out only u/s 465 and 471 IPC both are triable by Magistrate and are bailable offence. He also points out that there were business disputes between the applicant and complainant and till date, he has not taken any civil remedy for quashing of sale deed. Even the calculation of the area more than 960 sq. metres is not correct as it is only a land measuring 261.89 sq. metres and not the area mentioned in the First Information Report. He lastly submits that applicant is languishing in jail since 16.9.2020 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
5. Learned A.G.A. has vehemently opposed the prayer of bail and submits that prima facie, on the basis of the First Information Report and the investigation, case against the applicant is made out under all the offences referred in the First Information Report. Applicant has not only cheated the complainant but has sold the area more than what actually mentioned in the sale deed, executed by the complainant to the applicant.
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 criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep 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 count 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 case involving sexual offence against a woman should not mandate such 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, reported in 2021 SCC Online SC 230, decided on 18.3.2021 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 on the basis of material available, prima facie, present is a case based on sale transactions, wherein execution of a sale deed by the complainant in favour of the accused is not disputed, allegations are of executing subsequent various sale deeds to vendees, against whom no charge sheet is filed, involving total area to be more than the area actually sold to the applicant, though calculation is disputed. Complainant has not opted for any civil proceedings against the applicant. Out of the offences (Sections 420, 467, 468, 465, 471 IPC), except Section 467 IPC, all others are punishable with maximum sentence of seven years and are triable by a Magistrate and also considering that prosecution case is mainly rests upon documentary evidence, applicant is languishing in jail since 16.9.2020, this Court is of the view that a case of grant of bail is made out.
8. Let applicant - Gorakh Nath Singh be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the 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 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 Trial Court absence of applicant is deliberate or without sufficient cause, then it shall be open for Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and Trial Court may proceed against him under Section 229-A IPC.
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. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
12. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
13. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
14. 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 :- 28.4.2021 Rishabh