In Prabhakar Tewari v. State of U.P. and another reported in

Applicant :- Ashish Kumar Srivastava @ Ashish Srivastava Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko Counsel for Applicant :- Sanket Pandey Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.

1. Supplementary affidavit filed today is taken on record.

2. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

3. First bail application has been filed with regard to Case Crime No.199 of 2023 under Sections 409, 420, 506 I.P.C., P.S. Gomti Nagar, District Lucknow.

4. As per contents of first information report, the informant deposited an amount of Rs.2,00,000/- in the firm R sons Infraland Developers Pvt. Limited, for the purposes of booking a plot but sale deed was neither executed subsequently nor the plot was allotted in favour of informant.

5. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him and has also adverted to statements of informant during the course of investigation brought on record as Annexure C.A.-1 to counter affidavit filed on behalf of State to submit that informant himself has admitted that price of the plot in question was about Rupees13-14 lakh which was required to be paid by him within a period of three years but he failed to do so. It is submitted that until and unless the informant paid the entire sale consideration of plot in question, there was no occasion of transferring the plot in his favour. It is also submitted that the applicant has previous criminal history of 135 cases including the present case in which he has already been enlarged on bail in 134 cases. It is submitted that all the aforesaid cases pertain to same allegations as have been made in the present F.I.R.

6. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with submission that the long criminal history of 135 cases of applicant clearly indicates the continued demeanor on part of applicant. However, it is admitted that applicant does not have any other previous criminal history and out of 135 cases, the applicant has been enlarged on bail in 134 cases.

7. In Prabhakar Tewari v. State of U.P. and another reported in [(2020) 11 SCC 648], Hon'ble the Supreme Court has observed that pendency of several criminal cases against the accused cannot be a basis for refusal of bail. Prima facie all the cases against applicant appears to be relating to one company named above.

8. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

9. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, prima facie, and subject to further evidence being led in trial, it appears that primary allegations levelled against applicant is of not transferring plot in favour of informant despite payment of Rs.2,00,000/-; the aspect of statement of informant recorded that he failed to pay the entire amount of plot would be a subject matter of evidence; previous criminal history of applicant has already been explained in affidavit filed in support of application; Applicant is languishing in jail since 17.09.2024; judgments of Hon'ble the Supreme Court referred above, offences are triable by magistrate so also the judgment of Hon'ble Supreme Court rendered in Javed Gulam Nabi Shaikh v. State of Maharashtra and another : Criminal Appeal No.2787 of 2024, as such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.

10. Accordingly bail application is allowed.

11. Let applicant Ashish Kumar Srivastava @ Ashish Srivastava, involved in aforesaid case 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 which are being imposed in the interest of justice:- (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. Order Date :- 25.3.2025 kvg/-

Applicant :- Ashish Kumar Srivastava @ Ashish Srivastava Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko Counsel for Applicant :- Sanket Pandey Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J.

1. Supplementary affidavit filed today is taken on record.

2. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

3. First bail application has been filed with regard to Case Crime No.199 of 2023 under Sections 409, 420, 506 I.P.C., P.S. Gomti Nagar, District Lucknow.

4. As per contents of first information report, the informant deposited an amount of Rs.2,00,000/- in the firm R sons Infraland Developers Pvt. Limited, for the purposes of booking a plot but sale deed was neither executed subsequently nor the plot was allotted in favour of informant.

5. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him and has also adverted to statements of informant during the course of investigation brought on record as Annexure C.A.-1 to counter affidavit filed on behalf of State to submit that informant himself has admitted that price of the plot in question was about Rupees13-14 lakh which was required to be paid by him within a period of three years but he failed to do so. It is submitted that until and unless the informant paid the entire sale consideration of plot in question, there was no occasion of transferring the plot in his favour. It is also submitted that the applicant has previous criminal history of 135 cases including the present case in which he has already been enlarged on bail in 134 cases. It is submitted that all the aforesaid cases pertain to same allegations as have been made in the present F.I.R.

6. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with submission that the long criminal history of 135 cases of applicant clearly indicates the continued demeanor on part of applicant. However, it is admitted that applicant does not have any other previous criminal history and out of 135 cases, the applicant has been enlarged on bail in 134 cases.

7. In Prabhakar Tewari v. State of U.P. and another reported in [(2020) 11 SCC 648], Hon'ble the Supreme Court has observed that pendency of several criminal cases against the accused cannot be a basis for refusal of bail. Prima facie all the cases against applicant appears to be relating to one company named above.

8. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :- "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty." "27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

9. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, prima facie, and subject to further evidence being led in trial, it appears that primary allegations levelled against applicant is of not transferring plot in favour of informant despite payment of Rs.2,00,000/-; the aspect of statement of informant recorded that he failed to pay the entire amount of plot would be a subject matter of evidence; previous criminal history of applicant has already been explained in affidavit filed in support of application; Applicant is languishing in jail since 17.09.2024; judgments of Hon'ble the Supreme Court referred above, offences are triable by magistrate so also the judgment of Hon'ble Supreme Court rendered in Javed Gulam Nabi Shaikh v. State of Maharashtra and another : Criminal Appeal No.2787 of 2024, as such, without expressing any opinion on the merits of case, this Court finds, the applicant is entitled to be released on bail in this case.

10. Accordingly bail application is allowed.

11. Let applicant Ashish Kumar Srivastava @ Ashish Srivastava, involved in aforesaid case 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 which are being imposed in the interest of justice:- (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. Order Date :- 25.3.2025 kvg/-