Vide State of Rajasthan v. Balchand

Heard Sri Bipin Kumar Tripathi, learned counsel for the applicant, and learned A.G.A. for the State and perused the material on record. None appears for the first informant even in the revised call. The present bail application has been filed on behalf of applicant Avinash Tiwari, under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 578 of 2022 for offence punishable under Section 419, 420, 467, 468, 471, 406 of the Indian Penal Code, registered at Police Station Sahjanwa, District Gorakhpur, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (E.C. Act)/Additional Sessions Judge, Gorakhpur, vide order dated 8.5.2024. Learned counsel for the applicant submits that the applicant is innocent and has falsely implicated in the present case with ulterior motive. It is further submitted that the first information report dated 13.12.2022 has been lodged against the applicant and four other persons (Area Manager, Assistant Branch Manager, Field Manager and Branch Manager) of the company- Ashirvad Micro Finance Limited by Amit Kumar Singh, Area Manager alleging that named accused persons duped Rs. 1,25,59,735/- of the company in the process of sanctioning loan on the basis of forged documents. It is further submitted that no date and time has been mentioned between the aforesaid loans were sanctioned. It is further submitted that general allegation of sanctioning the loan has been assigned to five persons without collecting any forged document. It is further submitted that the applicant was Field Supervisor in the aforesaid Finance Company. It is further submitted that there is no pre-summoning evidence with regard to offence punishable under Section 467, I.P.C. Other offences are punishable up to seven years imprisonment. It is further submitted that co-accused Amit Yadav @ Suraj Yadav has been granted bail by this Court in Criminal Misc. Bail Application No. 21369 of 2024 vide order dated 30.5.2024. He has next argued that the applicant is languishing in jail since 2.4.2024, having no criminal history nor there is any likelihood of fleeing from course of justice or tempering with evidence in case of released on bail. Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail. It is well settled position of law that bail is the rule and committal to jail is an exception and refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution [Vide State of Rajasthan vs. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors Vs. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429 and Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2021) 10 SCC 773]. Keeping in mind, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, present bail application is allowed. Let the applicant Avinash Tiwari be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions :- (i) 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 or to any police officer or tamper with the evidence. (ii) The applicant shall not pressurize/intimidate the prosecution witnesses. (iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge and (c) recording of statement under Section 313 of Cr.P.C. (iv) 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 the trial court. (v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. (vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. Order Date :- 10.1.2025 T. Sinha TRIPTI SINHA High Court of Judicature at Allahabad

Heard Sri Bipin Kumar Tripathi, learned counsel for the applicant, and learned A.G.A. for the State and perused the material on record. None appears for the first informant even in the revised call. The present bail application has been filed on behalf of applicant Avinash Tiwari, under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 578 of 2022 for offence punishable under Section 419, 420, 467, 468, 471, 406 of the Indian Penal Code, registered at Police Station Sahjanwa, District Gorakhpur, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (E.C. Act)/Additional Sessions Judge, Gorakhpur, vide order dated 8.5.2024. Learned counsel for the applicant submits that the applicant is innocent and has falsely implicated in the present case with ulterior motive. It is further submitted that the first information report dated 13.12.2022 has been lodged against the applicant and four other persons (Area Manager, Assistant Branch Manager, Field Manager and Branch Manager) of the company- Ashirvad Micro Finance Limited by Amit Kumar Singh, Area Manager alleging that named accused persons duped Rs. 1,25,59,735/- of the company in the process of sanctioning loan on the basis of forged documents. It is further submitted that no date and time has been mentioned between the aforesaid loans were sanctioned. It is further submitted that general allegation of sanctioning the loan has been assigned to five persons without collecting any forged document. It is further submitted that the applicant was Field Supervisor in the aforesaid Finance Company. It is further submitted that there is no pre-summoning evidence with regard to offence punishable under Section 467, I.P.C. Other offences are punishable up to seven years imprisonment. It is further submitted that co-accused Amit Yadav @ Suraj Yadav has been granted bail by this Court in Criminal Misc. Bail Application No. 21369 of 2024 vide order dated 30.5.2024. He has next argued that the applicant is languishing in jail since 2.4.2024, having no criminal history nor there is any likelihood of fleeing from course of justice or tempering with evidence in case of released on bail. Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail. It is well settled position of law that bail is the rule and committal to jail is an exception and refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution [Vide State of Rajasthan vs. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors Vs. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429 and Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2021) 10 SCC 773]. Keeping in mind, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, present bail application is allowed. Let the applicant Avinash Tiwari be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions :- (i) 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 or to any police officer or tamper with the evidence. (ii) The applicant shall not pressurize/intimidate the prosecution witnesses. (iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge and (c) recording of statement under Section 313 of Cr.P.C. (iv) 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 the trial court. (v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. (vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 in accordance with law. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. Order Date :- 10.1.2025 T. Sinha TRIPTI SINHA High Court of Judicature at Allahabad