High Court
Case Details
Court No. - 92 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44824 of 2021 Applicant :- Pankaj Rajauriya Opposite Party :- State of U.P. Counsel for Applicant :- Maimoona Fatima Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
Heard Mohd. Nasir, Advocate A.O.R. No.A/M 0437/2016, holding brief of Ms. Maimoona Fatima, learned counsel for the applicant and Sri Shrawan Kumar Ojha, learned AGA who appears 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 Pankaj Rajauriya for seeking bail in Case Crime No.05 of 2020 under Sections 420, 120B I.P.C. and Section 66-D Information Technology Act registered at Police Station-Cyber Crime, District-Aligarh. The bail application of the applicant has been rejected by the court below, on 15.09.2021. Learned counsel for the applicant has argued that a first information report has been lodged by one Smt. Beena Sagar Sisiliya, wife of Sri Ram Sagar before Police Station Cyber Crime District Aligarh being FIR No.0005 on 6.11.2020 at 16.31 hours under Section 420 IPC and Section 66 of Information Technology (Amendment) Act, 2008 with an allegation that the complainant possesses a bank account in State Bank of India and also having credit card facility of the said bank itself. On 31.7.2020, the complainant received a call from an unknown number in relation to his credit card wherein from the answerer side it was apprised that her KYC is to be filled in and for that very purpose she will be receiving an OTP. Thereafter, the complainant under bonafide belief that the call had been received from the bank in question, tendered the OTP to the answerer side. On 12.09.2020 again the complainant had received a phone call and she was asked to tell her card number for KYC by the caller saying that there was some withdrawal from her account, whereupon the complainant told that she had not made any payment to anyone. Thereafter, the caller asked about her closed credit card, then she had given details of her card and thereafter an OTP was received on her mobile number and after giving the said OTP to the answerer side, a fraud of Rs.1,10,000/- (which has been wrongly mentioned as Rs.11000000) was done from the bank account of the complainant. Learned counsel for the applicant has next argued that the applicant has been falsely implicated in the case in question particularly in view of the fact that applicant did not receive any amount in his bank account and rather to the contrary there is no linkage of the applicant vis a vis with commission of the said offence and further co-accused Manish Savita, in whose account Rs.39,900/- was deposited by another co-accused Durgesh Kumar and who is also not accused in the FIR, has been enlarged on bail vide order dated 30.7.2021 passed in Criminal Misc. Bail Application No.16231 of 2021 followed by co-accused Yogesh Kumar @ Vidit has been enlarged on bail vide order dated 16.8.2021 passed in Criminal Misc. Bail Application No.17031 of 2021 and co-accused Durgesh Kumar has been granted anticipatory bail vide order dated 24.3.2021 passed in Crl. Misc. Anticipatory Bail Application No.8170 of 2021. In nutshell, the argument of the learned counsel for the applicant is that the applicant is not named in the FIR and no recovery has been made from him, thus he has been falsely implicated and he is entitled to be enlarged on bail on the ground of parity also with co-accused, referred to above, as he is unnecessarily languishing in jail since 18.8.2021. Leanred counsel for the applicant has drawn the attention of this Court towards para 26 of the application so as to contend that he does not posses any criminal history. Learned counsel for the applicant has further argued that if the applicant is enlarged on bail, he will not misuse the liberty. He be enlarged on bail. Countering the said submissions, learned AGA for the State has opposed the bail and has argued that the applicant has commissioned of offence but could not dispute the fact that that the applicant does not posses any criminal record and further co-accused have been enlarged on bail. Considering the submissions so advanced by the learned counsel for the parties on the question of bail, prima facie this Court finds that this is a fit case for grant of bail in view of the fact that applicant does not have any criminal history and no recovery has been made from him and further co-accused have been enlarged on 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 Pankaj Rajauriya 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 :- 3.2.2022 SP