Allahabad High Court
Kapil Tygai vs State Of U.P. on 1 March, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2804 of 2023 Applicant :- Kapil Tysgi Opposite Party :- State of U.P. Counsel for Applicant :- Aseem Kumar Rai,Kajal Seth Counsel for Opposite Party :- G.A.,Anurag Upadhyaya Hon'ble Rajeev Misra,J.
1. Heard Ms. Aseem Kumar Rai, the learned counsel for applicant, the learned A.G.A. for State and Mr. Anurag Upadhyaya, the learned counsel for first informant/opposite party-2.
2. Perused the record.
3. This third application for bail has been filed by applicant-Kapil Tyagi seeking his enlargement on bail in Case Crime No. 237 of 2019 under Sections 420, 467, 468, 471, 376, 506 I.P.C., Police Station-Murad Nagar, District-Ghaziabad during the pendency of trial.
4. The first bail application of applicant-Kapil Tyagi being Criminal Misc. Bail Application No. 31961 of 2019 Kapil Tyagi Vs. State of U.P.) was rejected by by this Court vide order dated 21.08.2019. For ready reference same is reproduced herein-under:-
"1. Heard Mr. Rajendra Kumar Pandey, learned counsel for the applicant, learned A.G.A. for the State and Mr. Anurag Upadhyay, learned counsel for the complainant.
2. This application for bail has been filed by applicant-Kapil Tyagi seeking his enlargement on bail in Case Crime No.237 of 2019 under Sections 420, 467, 468, 471, 376, 506 I.P.C. P.S.-Murad Nagar, District-Ghaziabad, during the pendency of the trial.
3. Perused the record.
4. In respect of criminality committed by the applicant-Kapil Tyagi, an F.I.R. dated 16.03.2019 was lodged by the victim-Priti Chaudhary, which was registered as Case Crime No. 0237 of 2019 under Sections 420, 467, 468, 471, 376, 506 I.P.C. P.S.-Murad Nagar, District-Ghaziabad.
5. It has come on the record that date of birth of the victim as per her High School Certificate is 01.07.1998. As per allegations made in the F.I.R., it is alleged that the applicant has misused the victim and has taken a large amount of money from her for getting her employed in a government service. In the bail rejection order passed by the Court below, a point has been demonstrated that the applicant has given a Cheque of Rs. 23, 47,000/- to the mother of the victim in view of the amount so taken by the applicant from the victim but the said Cheque has not been encashed on account of insufficient funds.
6. Learned counsel for the applicant submits that the applicant and the victim are known to each other. Since the school days, the applicant and the victim were accompanying and travelling to various places therefore, the victim is a consenting party. On the aforesaid factual premise, he submits that the applicant is liable to be enlarged on bail.
7. Per contra, the learned AGA and the learned counsel appearing for the complainant have opposed the prayer for bail. They invited the attention of the Court to the bail rejection order passed by the Court below and on the basis of the facts contained therein as well as the findings recorded therein, they submit that no case for bail has been found.
8. Having heard the learned counsel for the applicant, learned A.G.A. for the State, learned counsel appearing for the complainant and upon consideration of nature of allegations as well as the complicity of the applicant but without expressing any opinion on merits of the case, I am of the view that no case for bail is made out.
9. Accordingly, the present bail application of the applicant is hereby rejected.
Order Date :- 21.8.2019"
5. Thereafter, applicant filed Second Application for bail being Criminal Misc. Bail Application No. 2415 of 2020 (Kapil Tyagi Vs. State of U.P.), which was also rejected by this Court vide order dated 12.08.2021. The same reads as under:
"Heard Mr. Aseem Kumar Rai, learned counsel for applicant and learned A.G.A. for State. No one appears on behalf of informant even though name of Mr. Anurag Upadhyaya is duly published in cause list.
This is second bail application filed by applicant Kapil Tyagi seeking his enlargement on bail in Case Crime No. 237 of 2019, under Sections 420, 467, 468, 471, 376, 506 IPC, P.S. Murad Nagar, District Ghaziabad, during pendency of the trial.
First bail application of applicant was rejected by this Court by a detailed order dated 21.8.2019. For ready reference, same is reproduced herein under:-
"1. Heard Mr. Rajendra Kumar Pandey, learned counsel for the applicant, learned A.G.A. for the State and Mr. Anurag Upadhyay, learned counsel for the complainant.
2. This application for bail has been filed by applicant-Kapil Tyagi seeking his enlargement on bail in Case Crime No.237 of 2019 under Sections 420, 467, 468, 471, 376, 506 I.P.C. P.S.-Murad Nagar, District-Ghaziabad, during the pendency of the trial.
3. Perused the record.
4. In respect of criminality committed by the applicant-Kapil Tyagi, an F.I.R. dated 16.03.2019 was lodged by the victim-Priti Chaudhary, which was registered as Case Crime No. 0237 of 2019 under Sections 420, 467, 468, 471, 376, 506 I.P.C. P.S.-Murad Nagar, District-Ghaziabad.
5. It has come on the record that date of birth of the victim as per her High School Certificate is 01.07.1998. As per allegations made in the F.I.R., it is alleged that the applicant has misused the victim and has taken a large amount of money from her for getting her employed in a government service. In the bail rejection order passed by the Court below, a point has been demonstrated that the applicant has given a Cheque of Rs. 23, 47,000/- to the mother of the victim in view of the amount so taken by the applicant from the victim but the said Cheque has not been encashed on account of insufficient funds.
6. Learned counsel for the applicant submits that the applicant and the victim are known to each other. Since the school days, the applicant and the victim were accompanying and travelling to various places therefore, the victim is a consenting party. On the aforesaid factual premise, he submits that the applicant is liable to be enlarged on bail.
7. Per contra, the learned AGA and the learned counsel appearing for the complainant have opposed the prayer for bail. They invited the attention of the Court to the bail rejection order passed by the Court below and on the basis of the facts contained therein as well as the findings recorded therein, they submit that no case for bail has been found.
8. Having heard the learned counsel for the applicant, learned A.G.A. for the State, learned counsel appearing for the complainant and upon consideration of nature of allegations as well as the complicity of the applicant but without expressing any opinion on merits of the case, I am of the view that no case for bail is made out.
9. Accordingly, the present bail application of the applicant is hereby rejected."
Learned counsel for applicant contends that subsequent to order dated 21.8.2019, P.W. 1 prosecutrix Priti Chaudhary has been examined before Court below. Her statement-in-chief/examination-in-chief has been brought on record as Annexure 1 to the supplementary affidavit.
On the basis of above, learned counsel for applicant contends that there is contradiction in statement of prosecutrix in her statement as given before Court below and the version as stated in F.I.R. He, therefore, submits that since prosecutrix herself has not been able to support the allegations made in F.I.R., applicant is liable to be enlarged on bail.
Per contra, learned A.G.A. has opposed this application. Learned A.G.A. contends that even though this Court is a superior Court. Prudence requires that this Court should not evaluate the evidence recorded during course of trial as any observation made by this Court may prejudice either of the parties. Any exercise by this Curt in light of above may pre-empt the trial itself. The evaluation of evidence, which has been recorded during course of trial should be dealt with by Trial Court itself. On the aforesaid premise, learned A.G.A. contends that no new or good ground has been made out to enlarge the applicant on bail.
Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of record, this Court find that no new or good ground has been made out in support of second bail application. Consequently, second bail application filed by applicant is liable to be dismissed.
It is, accordingly, dismissed."
6. Learned counsel for applicant submits that applicant is in jail since 18.03.2019. As such, applicant has undergone almost four years of incarceration. He then submits that looking into the period of incarceration undergone by applicant, applicant is liable to be enlarged on bail.
7. Per contra, the learned A.G.A. for State and Mr. Anurag Upadhyaya, the learned counsel for first informant/opposite party-2 have vehemently opposed the this application for bail. They jointly submit that the trial is in at advance stage. The statement of applicant under Section 313 Cr.P.C. has already been recorded. It is then contended that looking into the nature and gravity of offence, the period of inceration undergone by applicant is wholly misconceived. Since no new or good ground is made out to enlarge the applicant on bail, as such applicant does not deserve any indulgence by this Court.
8. In Addition to above, Mr. Anurag Upathyaya, the learned counsel for first informant submits that applicant has also approached the Apex Court for seeking his enlargement on bail by filing Special Leave to Appeal (Crl) No(s) 7138 of 2021 (Kapil Tyagi Vs. State of U.P.). The Apex Court vide order dated 17.12.2021, held that petitioner is directed to be enlarged on bail subject to deposit of Rs. 15 Lakhs. For ready reference order dated 17.012.2021 is reproduced herein under:
"The Court is convened through Video Conferencing.
Heard learned counsel appearing on behalf of the petitioner as also the learned Additional Advocate General appearing on behalf of the respondent ? State.
Learned counsel for the petitioner submits that the petitioner may be granted bail as he has already suffered incarceration for a period of 2 years and 6 months. Learned counsel,also submits that the petitioner is willing to deposit Rs.15,00,000/- (Rupees fifteen lakhs) before the trial court within four weeks from today.
In view of the above, the petitioner is directed to be enlarged on bail to the satisfaction of the trial court subject to deposit of Rs.15,00,000/- (Rupees fifteen lakhs) before the trial court within four weeks from today.
The special leave petition stands disposed of accordingly.
As a sequel to the above, pending interlocutory applications also stand disposed of.
However, it is made clear that the amount to be deposited by the petitioner before the trial court shall be subject to the final outcome of the criminal proceedings."
5. However, learned counsel representing first informant/opposite party 2 submits that concealing the above order dated 17.12.2021, the third application for bail has been filed by applicant. Therefore, third application for bail is liable to be rejected.
14. When confronted with above, the learned counsel for applicant could not overcome the same.
15. Having heard the learned counsel for applicants, the learned A.G.A. for State, the learned counsel for first informant and upon consideration of evidence on record, accusations made as well as complicity of applicants coupled with the fact that concealing the order dated 17.12.2021 passed by Apex Court, third bail application has been filed, but without expressing any opinion on the merits of the case, this Court does not find any new or good ground to enlarge the applicant on bail.
16. Consequently, the third application for bail fails and is therefore liable to rejected.
17. It is accordingly rejected.
Order Date :- 1.3.2023 YK