Court No. - 89
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49044 of 2021 Applicant :- Harun Saifi Opposite Party :- State of U.P.
Counsel for Applicant :- Manoj Kumar,Manish Kumar Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
Supplementary affidavit filed is taken on record.
Heard Sri Manish Kumar learned counsel for the applicant and Sri L.D. Rajbhar learned AGA, who appears for the State.
This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of applicant Harun Saifi for seeking bail in Case Crime No.646 of 2021 under Sections 379, 411, 413 I.P.C. registered at Police Station-Sector-24, District- Gautam Buddha Nagar.
The bail application of the applicant has been rejected by the court below on 15.9.2021.
Learned counsel for the applicant has argued that a first information report has been lodged by the complainant being Dinesh Kumar s/o Nepal Singh against unknown person on 30.6.2021 before Police Station-Sector-24, District-Gautam Buddha Nagar alleging that the complainant is the owner of INOVA CAR having registration no.UP16CB3366 Silver colour having Chasis No.MBJAA3EM900791071, Engine No.IGDA249185 which was parked in front of the house of the complainant. It was observed that the said Car was missing. He has further argued that the story of the prosecution is implorable and has no legs to stand as from the bare version of the prosecution it reveals that the applicant was sitting in Verna Car having registration No.UP13BA1200 but the same recovery memo it is stated that when the police checked it from the offcial portal of Transport Department, the said vehicle was registered in the name of Mohd. Yusuf, who happens to be the employer of the applicant.
It has been further argued that on the strength of the supplementary affidavit in relation to para 2 wherein the applicant as stated that he is the driver of the co-accused Mohd. Yusuf.
Learned counsel for the applicant has further submitted Mohd. Yusuf has already been enlarged on bail in Criminal Misc.Bail Application 41607 of 2021, Mohd. Yusuf Vs. State of U.P. on 9.11.2021. Thus, the applicant is also entitle to the same parity which has been sought to be extended to his employer being Mohd. Yusuf. The order passed in Criminal Misc.Bail Application 41607 of 2021, Mohd. Yusuf Vs. State of U.P. on 9.11.2021 for ready reference is extracted hereinbelow:-
Heard Sri Vivek Kumar Singh and Sri Kapil Tyagi, learned counsels for the applicant, Ms. Babita Kumari, learned brief holder for the State and perused the material on record.
Sri Vivek Kumar Singh states that he has filed his memo of appearance in the office on 08.11.2021, but the same is not on record. Office is directed to trace out the same and place it on record and make a note about it in the order sheet.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Mohd. Yusuf, seeking enlargement on bail during trial in connection with Case Crime No. 646 of 2021, under Sections 379, 411, 413 I.P.C. registered at P.S. Sector-24, District Gautam Budh Nagar.
The prosecution case as per the F.I.R. lodged on 30.06.2021 at about 17:34 hours, under Section 379 I.P.C. by Dinesh Kumer, is that his Innova Car No. UP 16CB3366 was stolen which was parked by him in front of his house. The F.I.R. has been lodged against some unknown person. Subsequently, the police on some information allegedly recovered 10 luxury cars and five accused persons namely Gulfam@Katora, Sajid, Mohd. Yusuf the present applicant, Haroon Saifi and Amit Kumar were arrested and there were five other co-accused persons who were involved in the said case. The F.I.R. of the same was lodged as Case Crime No. 0648 of 2021, at about 10:10 hours, under Sections 411, 414, 413, 420, 482 I.P.C., P.S.-Sector-24, District Gautam Budh Nagar.
It is argued that although the applicant is stated to have been arrested while being seated in Verna car having Registration No. UP13BA1200 but in the same recovery memo it is stated that when the police checked it from the official portal of Transport Department, the said vehicle was found to be registered in the name of the applicant. It is argued that subsequently the co-accused Gulfam and Haroon informed the police that the applicant and co-accused Sajid used to purchase the stolen vehicles from them and then the applicant used to take them to his village where he inscribed engine number, chassis number of the accidental vehicles on the stolen vehicles and then sold them on good prices. It is argued that there is no credible evidence on record to show the involvement of the applicant in the present case. It is argued that even there is no evidence whatsoever that the applicant has sold any such vehicle to anyone or there is no evidence whatsoever to the said effect. It is argued that the applicant is car mechanic and his implication in the present is on the basis of confessional statement of two co-accused Gulfam and Haroon which is inadmissible evidence. It is argued that after arrest of the applicant, he is implicated in two other cases being Case Crime No. 211 of 2021, under Sections 379, 411 I.P.C., Sector-40, Gurgaon, Haryana and Case Crime No. 648 of 2021, under Sections 411, 414, 413, 420, 482 I.P.C., Sector-24 Noida, District Gautam Budh Nagar. The applicant is in jail since 01.7.2021.
Per contra, learned State counsel opposed the prayer for bail and argued that the applicant is involved in the present case who is instrumental in stealing of vehicles and then making modification in the engine and chassis numbers and selling them. It is argued that the implication of the applicant in the case is on the basis of statement of co-accused.
After having heard learned counsels for the parties and perusing the record, it is evident that the applicant is not named in the F.I.R. His implication in the present case is on the basis of confessional statements of co-accused to the police. There is no recovery of any incriminating material either from the possession or pointing out of the applicant.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Mohd. Yusuf, 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 the 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 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.
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.
The bail application is allowed.
Learned counsel for the applicant has further argued that though he has referred to paragraph no.5 so as to contend that the aforesaid cases so sought lodged against the applicant in relation to be first information report which is under question in the present proceedings.
Learned counsel for the applicant has further urged that he is languishing in jail since 1.7.2021.
Countering the said submission, learned AGA for the State has though opposed the bail but he could not point out any infirmity regarding the criminal history of the applicant as well as the fact with regard to co-accused Mohd. Yusuf has already enlarged and the applicant is to be unknown in first information report in question.
Looking into the nature of the offence, there are no chances of accused fleeing from justice and period of detention in jail, without expressing any opinion on the merits, this case is found to be a fit case for bail.
Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant Harun Saifi involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
i) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(iv) 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 to any police officer or tamper with the evidence.
(v) Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Any observations made in granting bail to the applicants shall not in any way affect the learned Trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 22.12.2021 piyush