Raghvendra Nishad v. State of U.P

Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49575 of 2023 Applicant :- Raghvendra Nishad Opposite Party :- State of U.P. Counsel for Applicant :- Dinesh Kumar Gupta Counsel for Opposite Party :- G.A. Hon'ble Mrs. Renu Agarwal,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶2The present first bail application under Section 439 Cr.P.C. has been filed on behalf of the applicant in Case Crime No. 207 of 2023 under Sections 419, 420, 467, 468, 471 I.P.C. and Section 65/66 I.T. Act, Police Station Kurara District Hamirpur with the prayer to enlarge him on bail.

¶3Learned counsel for the accused-applicant submitted that the applicant is innocent and has been falsely implicated in the instant case due to malafide intentions. Prosecution story as per the F.I.R. is that, police party received information from the informer that a gang of hacking ATM machine is active. Upon receiving such information, police party apprehended four accused persons while two of them fled away taking advantage of the darkness. Two motorcycles, Rs. 20,000/-, three mobile phones, 15 ATM cards and four Adhar cards were recovered from the possession of the apprehended accused persons. It is submitted that the applicant was not arrested at the place of occurrence and his name surfaced in the statement of co-accused and nothing incriminating has been recovered from his possession. It is further submitted that applicant was not identified in the footage of CCTV camera installed in the ATM premises. It is next submitted that not a single public witness has been examined by the Investigating Officer. It is contended that in case crime No. 327 of 2022 under Section 323, 504, 506 I.P.C. the applicant has not received any summon till date and in case crime No. 339 of 2022 applicant has moved an anticipatory bail applicant and before the anticipatory bail application could be disposed of the applicant was arrested in the present case. Applicant has criminal history of two more cases i.e. case crime No. 1049 of 2022 and case crime No. 474 of 2022 and in both the case applicant has been enlarged on bail by the court below and copy of the bail orders are annexed as Annexure No. 10 and 11 to the affidavit filed in support of the bail application. Applicant is languishing in jail since 01.07.2023 and if he is granted the liberty of bail he will not misuse the same and he is ready to furnish his sufficient sureties, bonds and personal bonds.

¶4On the other hand, learned AGA has opposed the prayer of bail and submitted that case crime No. 339 of 2022 is also of the similar nature and if the applicant is granted the liberty of bail he may repeat the same crime.

¶5Considering the fact that the applicant was not named in the F.I.R. and he was not arrested at spot, name of the applicant surfaced on the confessional statement of the of the co-accused, nothing incriminating has been recovered from the possession of the applicant during investigation, applicant was not identified in the footage of CCTV camera installed in the ATM premises, charge-sheet has been submitted against the present applicant and charges have been framed on 1309.2023, criminal history is well explained and without expressing any opinion on the merits of the case, accused-applicant is liable to be released on bail.

¶6Let applicant Raghvendra Nishad be released on bail in the above case crime number and on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) 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 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.

(ii) 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.

(iii) 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.

(iv) 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.

(v) The applicant shall also furnish an undertaking from the sureties that the properties (movable/immovable) which are the basis of accepting the surety, shall not be disposed of by them till the conclusion of trial.

(vi) The applicant shall also give an undertaking to the effect that he will not change his address without prior intimation to the trial court concerned. (Renu Agarwal,J.) Order Date :- 22.11.2023 Karan High Court of Judicature at Allahabad