High Court
Case Details
1 Court No. - 92 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43962 of 2021 Applicant :- Ajay Tiwari Opposite Party :- State of U.P. Counsel for Applicant :- Kamlendra Tripathi,Satish Kumar Shukla Counsel for Opposite Party :- G.A.,Kamlesh Kumar Yadav Hon'ble Vikas Budhwar,J. Heard Sri Satish Kumar Shukla, learned counsel for the applicant, Sri Kamlesh Kumar Yadav, learned counsel for the complainant and Sri Avaneesh Kumar Shukla, the learned AGA for the State. This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of applicant- Ajay Tiwari for enlarging him on bail in Case Crime No.570 of 2021, under Sections 420, 467, 468, 471, 406 IPC read witih Section 66D of the I.T. (Amendment) Act, 2008 registered at Police Station- Barra, District- Kanpur Nagar. The bail application so preferred by the applicant has been rejected by the court below on 23.9.2021.
Facts
Learned counsel for the applicant has argued that a first information report has been lodged by Ved Prakash against the applicant before Police Station- Barra, District- Kanpur Nagar being FIR no.0570 of 2021, under Section 66D of the I.T. Act, 2008 relatable to the fact that the complainant was allured by the applicant herein to invest the amount of Rs.28,60,000/- in a certain scheme pursuant whereto his money will be multiply. Learned counsel for the applicant has further argued that he has not committed any offence as it was well within the knowledge of the informant that the money was to be invested. He has further argued that though he on the basis of the allegations contained in the first information report is entitled to be enlarged on bail as no offence has been made but on humanatrian ground the applicant herein is tendering an amount of Rs.28,00,000/- lakhs to the
Legal Reasoning
parties on the question of bail, this Court prima facie finds that this is a fit case for grant of bail, as the applicant does not possess any criminal history 3 and is languishing in jail since 14.10.2021, and the counsel for the complainant has admitted receipt aforesaid amount, as also 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- Ajay Tiwari 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. 4 Any observations made in granting bail to the applicant 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 :- 15.2.2022 piyush Digitally signed by PIYUSH KUMAR Date: 2022.02.21 10:48:01 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
complainant/informant. Learned counsel for the applicant has produced a copy 2 of bank drafts the details regarding bank, branch, date, number as well as amount is being recapitulated in the form of tabular chart. Learned counsel for the applicant has further made a submission at bar Rs.5,58,220/- post dated cheque. Bank Branch Date D.D./Cheque No. Amount (Rs) ICICI Kanpur 30/11/2021 503655 Canara Bank Kanpur 02/12/21 737157 17,00,000/- 5,50,000/- Canara Bank Ghaziabad 01/06/22 87152200049457 5,58,220/- Learned counsel for the applicant has further argued that the applicant is unnecessarily languishing in jail since 14.10.2021. If he is enlarged on bail, he will not misuse the liberty, he be enlarged on bail. Sri Kamlesh Kumar Yadav, learned counsel for the complainant has made a submission at bar that he has received instructions of his client that he has authorised to take aforesaid both the bank drafts amounting to Rs.22,500/-. Sri Yadav has further made a submission at bar his client also received Rs.5,58,220/- out of the court. He has further made a submission that his client has no objection in receiving the aforesaid amount in this regard. Sri Satish Kumar Shukla, learned counsel for the applicant has handed over the copy of the bankdrafts of Rs.17,00,000/ and Rs.5,50,000/- to the counsel of the complainant. He has further argued that the applicant has no criminal history while referring to paragraph 12 of the bail application. Sri Kamlesh Kumar Yadav, learned counsel for the complainant has further made a submission that he does not opposes the present bail application as according to the instructions so received by his client, the amount which is due at this stage has already been received by him. Learned AGA, who appears for the State, has not opposed the bail application. According to him once the amount stands paid to the complainant then the State even will have no objection in passing the order in granting bail to the applicant Considering the submissions so advanced by the learned counsel for the