High Court
Case Details
Court No. - 92 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24437 of 2021 Applicant :- Anwar Ansari Opposite Party :- State of U.P. Counsel for Applicant :- Vinay Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
Heard Sri Vinay Kumar Tripathi, learned counsel for the applicant and Sri Munne Lal learned AGA for the State through V.C. This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of applicant Anwar Ansari for seeking bail in Case Crime No.296 of 2020 under Sections 420 I.P.C. and 66D Information Technology (Amendment) Act, registered at Police Station-Vrindavan, District-Mathura. The bail application of the applicant has been rejected by the court below, on 12.4.2021. Learned counsel for the applicant has argued that a first information report has been lodged by one Kamal Goswami Police Station-Vrindavan, District-Mathura being FIR No.0296 on 6.5.2020 at 12.35 hours under Sections 420 I.P.C. and 66D Information Technology (Amendment) Act with an allegation that the complainant received a call in his mobile number from the mobile no.6297456266 and a message also on 28.4.2020 at 9.13 hours wherein the complainant was apprised that his sim card is to be updated and he has to click yes or no and further he did not receive any OTP though he had account with ICICI bank and from 29.4.2020 to 2.5.2020 an amount of Rs.24,36,365/- was debited from his bank account. He has next argued while referring to page 53/54 of the paper book being appended as annexure-9 to the application so as to contend that from the case diary details, it is clear that the aforesaid mobile no.6297456266 is owned by one Sri Sadanand Pal and the same is not owned by the applicant. He has next referred to annexure- 6 of the applicant reference whereof has been given at para 12 which happens to be the statement of the ICICI bank wherein at page 43 and item no.71 the mobile no.6297456266 has been shown to be under the heading of fraudster and the name of the victim has been shown to be Kamal Bihari and the bank account has been shown to be 101701502446 and the amount of Rs.24,36,365/- has been shown to be debited from the account of the claimant so as to contend that the said amount to transfer by using the said mobile number which according to the learned counsel for the applicant does not belong to the applicant. Learned counsel for the applicant has further drawn the attention of this Court towards page 36 being the photocopy while further arguing the FIR was lodged in Case Crime No.25 of 2020, under Sections 403/405/419/420/469/468/471/120B, 66(B)(C)(D)/54(C) of the IT Act P.S. Cyber Thana, District Devghar against unknown persons on 11.5.2020 reference whereof has been given in paragraph 11 of the application. Learned counsel for the applicant has drawn the attention of this Court towards the counter affidavit filed on behalf of State by one Jagdish Prasad posted as Inspector (Crime), District Mathura dated 25.10.2021 wherein in paragraph 8 of the same reference has been given to the fact that FIR was lodged on 11.5.2020 by the Deputy Superintendent of Police (Cyber) being Case Crime No.25 of 2021 wherein further reference has been given that in the aforesaid complainant out of 74 mobile numbers which have been used by fraudsters the serial no.71 pertains to the fraud played by the applicant while referring to annexure 6 at page 41 relevant extract at 43 of the bail application. He has further argued that recovery of Rs.24,000/- in three transactions were shown to have been transferred from the informant Kamal Bihari in the bank account of the applicant. Learned counsel for the applicant has next drawn the attention of this Court towards paragraph 7 of the rejoinder affidavit dated 5.1.2022 so as to contend that the applicant has been enlarged on bail in Case Crime No.25 of 2020 as referred to above by the Hon. High Court of Jharkhand in Bail Application No.11206 of 2020. Thus the applicant languishing in jail since 26.3.2021 particularly in view of the fact that the applicant neither named in the FIR nor the number from where fraud has been shown to have been played belongs to him and further proceedings under the aforenoted sections is triable by Magistrate and the applicant has further argued that while referring to para no.26 of the paper book so as to contend that the he has no criminal history. Countering the said submission learned AGA for the State has though opposed the bail vehemently and has argued that merely because the name of the applicant does not find place in the FIR will not matter at all as fraud has been placed online and the applicant has also been found to be possessing Rs.24000/- and other incriminating documents and recovery has been made from the applicant in connection with the Case Crime No.25 of 2020 and he was also arrested and recovery memo has also prepared showing the applicant along with Rs.24,000/- which was transferred in his bank account and further merely because the applicant does not possess any criminal history and the same is not relevant factor in this regard. Learned AGA has further argued that while referring to paragraph-8 of the counter affidavit that the matter is quite serious, the applicant has commissioned the offence. Thus, he has rightly confined in jail. Considering the submissions so advanced by the learned counsel for the parties on the question of bail, this Court prima facie finds that the aforesaid offences are triable and further the fact that the applicant was not named in the FIR coupled with the further fact that the applicant does not possess any criminal history and also the fact that the applicant has been enlarged on bail on 15.1.2021 by the Hon'ble Jharkhand High Court in Bail Application No.11206 of 2020 in Case Crime No.25 of 2020 wherein he was arrested and recovery was also shown against him to the tune of Rs.24,000/ and passbook. Thus, this is a fit case for grant of bail, looking into the nature of acquisition, the evidence collected by the I.O. in support of the charge, gravity of offence, nature and severity of the punishment in the case of conviction, complicity of accused and all attending circumstances. 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 Anwar Ansari 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. Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicant is placed before the Court, the same would be entertained. Order Date :- 24.1.2022 piyush