Court No. - 83
Case :- APPLICATION U/S 482 No. - 13753 of 2021 Applicant :- Wilson Opposite Party :- State of U.P.
Counsel for Applicant :- Anshu Singh,Hemendra Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Hemendra Pratap Singh, learned counsel for applicant and learned AGA for State.
2. Perused the record.
3. At the very outset, learned counsel for applicant contends that he be permitted to amend the prayer clause of this application by replacing the word Quash with modify and further substitute the date of impugned order as 23.02.2021 in place of 25.06.2021.
4. Prayer made for is bonafide. Accordingly, same is allowed.
5. Let necessary amendment in prayer clause of present application be carried out by learned counsel for applicant during course of the day.
6. This application under Section 482 Cr.P.C. has been filed seeking modification of order dated 23.02.2021 passed by Chief Judicial Magistrate, Aligarh in Case Crime No. 1001 of 2020 under Sections 14, the Foreigners Act, 1946, Police Station- Quarsi, District-Aligarh.
7. Record shows that in respect of an incident which is alleged to have occurred on 30.10.2020, first informant/opposite party- 2, S. I. Arvind Singh, lodged an F.I.R. dated 31.10.2020.
8. Pursuant to aforesaid F.I.R. applicant was taken into custody on 31.10.2020. Subsequently, applicant was enlarged on bail, vide order dated 10.02.2021 passed by this Court in Criminal Misc. Bail Application No. 144 of 2021 (Wilson Vs. State of U.P.). For ready reference, order dated 10.02.2021 is reproduced herein under:-
"Heard learned counsel for the applicant, learned A.G.A for the State and perused the material on record.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.1001 of 2020, under Section 14 of the Foreigners Act, 1946, P.S. Quarsi, District Aligarh.
Learned counsel for the applicant submits that the applicant is Nigerian and after expiry of Visa he is living in India. He further submits that the validity of the Visa was upto 05.03.2017, which was extended by manipulation. He also submits that he will co-operate for early disposal of the trial as well as apply for Visa after release on bail. He further also submits that the co-accused Sunday Junior and Chukwuma Golfsley have been granted bail by co-ordinate Bench of this Court vide orders dated 05.02.2021 in Criminal Misc. Bail Application Nos.1015 of 2021 and 960 of 2021, respectively, therefore, the applicant is entitled for bail on the ground of parity. He further submits that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail and the applicant is languishing in jail since 31.10.2020.
Per contra, learned A.G.A. has opposed the bail prayer of the applicant but could not dispute the aforesaid fact that co-accused have already been released on bail.
Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, enlargement of co-accused on bail, the applicant is entitled for bail and also perusing the material on record, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- Wilson involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The applicant shall not leave India till trial is concluded.
ii) The applicant shall file an undertaking to the effect that he will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant shall not seek any adjournment on the dates 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.
(iii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) 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. is issued and the 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 of the Indian Penal Code.
(v) 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 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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 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. In case of breach of any of the above conditions, it shall be a ground of cancellation of bail."
9. Subsequent to order dated 10.02.2021, applicant filed computer generated copy of bail order dated 10.02.2021 before Chief Judicial Magistrate, Aligarh. On receipt of aforesaid, Chief Judicial Magistrate, Aligarh, passed order dated 23.02.2021, whereby applicant was directed to be released on bail on his furnishing a personal bond of Rs. 1,00,000/- and two sureties of like amount. Copy of above order is on record as Annexure 3 to the affidavit.
10. As applicant is a foreign national and also a poor person, he is unable to arrange two sureties of Rs. 1,00,000/- each. Accordingly, applicant filed an application dated 24.02.2021 before Chief Judicial Magistrate, Aligarh. seeking modification of order dated 23.02.2021 in terms prayed for and further for permission to deposit the required amount in cash.
11. Chief Judicial Magistrate, Aligarh. vide order dated 25.06.2021 permitted applicant to deposit the requisite amount in cash, but did not modify the amount to be deposited in terms prayed for.
12. Feeling aggrieved by above, applicant has now approached this Court by means of present application under Section 482 Cr. P. C.
13. Learned Counsel for the applicant, placing reliance upon order dated 19.12.2018 as modified, vide order dated 03.05.2019 passed in Criminal Misc. Application under Section 482 Cr. P. C. No. 45840 of 2018 (Godwin Obinna George Vs. State of U.P.) and order dated 23.05.2018 passed in Criminal Misc. Application No. 17406 of 2018 (Francis Vs. State of U.P.) contends that in similar circumstances, this Court has modified the conditions imposed by Court below with regard to the value of sureties and personal bond to be furnished by an accused. On the aforesaid premise, learned counsel for applicant contends that in present case, the amount of personal bond as well as surety bonds be reduced to Rs. 50,000/- each, so that applicant, who has already been enlarged on bail, is bailed out.
14. To appreciate the submission urged by learned counsel for applicant, it is imperative to reproduce orders dated 19.12.2018 and 03.05.2019 passed in Criminal Misc. Application under Section 482 Cr. P. C. No. 45840 of 2018 (Godwin Obinna George Vs. State of U.P.).
"Heard learned counsel for the applicant and the learned AGA for the State.
The submission is that applicant was granted bail by this Court and directed the Court below to release the applicant on bail on furnishing personal bond and two sureties each in the like amount to the satisfaction of the court below.
The applicant made an application before the Court below that he has been directed to produce two sureties of Rs.3 lakhs each but being foreign national he has not been able to arrange two sureties and therefore, he is willing to deposit the aforesaid amount of sureties in cash, which may be accepted and he may be enlarged on bail. By the impugned order dated 30.10.2018, the court below has rejected the application of the applicant on the ground that it is bound by the order of the High Court cannot accept amount in cash as per Section 445 Cr.P.C.
Learned Counsel for the applicant has relied upon the judgements in the case of Sajal Kumar Mitra and others Vs. State of Maharashtra, 2011 LawSuit(Bom)26, Zoro Daniel Vs. State, 2012 LawSuit(Del)1503 and Sagayam @ Devasagayam Vs. State REP by Inspector of Police, 2017 LawSuit(Mad)705, wherein the Courts have held that where the accused is unable to arrange sureties, he can be directed by the Trial Court to deposit the amount of sureties in cash.
Having considered the aforesaid, the order dated 30.10.2018 passed by the learned C.J.M., Jalaun at Orai is modified to the extent that the applicant is permitted to deposit the cash amount of Rs. 6,00,000/- in lieu of two sureties with the C.J.M. concerned Subject to deposit of such security amount and on furnishing a personal bond of the same amount the applicant be released on bail by C.J.M., subject to the following further conditions:-
(i) The applicant shall not leave the country without prior permission of the learned trial court.
(ii) The applicant shall cooperative with the trial.
(iii) The applicant shall submit his passport with the learned court below, with due intimation of this order as also bail order to the Embassy of Nigeria. Such that no other, further or duplicate passport be issued to the applicant by that Embassy during the pendency of the aforesaid trial.
The present application is disposed of."
15. Order on Criminal Misc. Modification Application No. 01 of 2019 This modification application has been filed by the applicant praying that the order dated 19.12.2018 passed by this court may be modified and the amount of Rs. 6,00,000/- directed to be deposited in lieu of two sureties, before the C.J.M., Orai at Jalaun, may be reduced to Rs. 1,00,000/- since the applicant, who is a foreign national, is not in a position to arrange the aforesaid amount and despite grant of bail on 19.12.2018 he is still languishing in jail on account of inability to arrange the aforesaid amount.
The counsel for the applicant has submitted that since the passport of the applicant has already been directed to deposit before the trial court, there is no apprehension that he will leave the country. He cannot do so without the permission of the court.
It has been further submitted that the direction for deposit of amount of Rs. 6,00,000/- is an onerous condition which cannot be complied by the applicant.
The order dated 19.12.2018 of this court is modified and the trial court is directed to accept Rs. 1,00,000/- towards the amount of surety from the applicant and release him on bail. However, the trial court is directed to conclude the trial of the applicant within a period of one year from today.
The modification application is allowed."
16. Having heard learned counsel for applicant, learned A.G.A. for State, and upon perusal of record and taking into consideration orders passed by this Court as referred to above, the order dated 23.02.2021 passed by Chief Judicial Magistrate, Aligarh, in Case Crime No. 1001 of 2020, under Section 14 of Foreigners Act, Police Station Quarsi, District Aligarh, is, hereby, modified.
17. Accordingly, it is provided that applicant shall furnish a personal bond of Rs. 50,000/- and two sureties of like amount. Amount of personal bond and sureties shall be deposited in cash as already directed by Chief Judicial Magistrate, Aligarh, vide order dated 25.06.2021.
18. With the aforesaid direction, present application is disposed of.
Order Date :- 12.8.2021 YK