Allahabad High Court
Rishabh Jain vs State Of U.P. on 9 September, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 52 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20975 of 2020 Applicant :- Rishabh Jain Opposite Party :- State of U.P. Counsel for Applicant :- Sharique Ahmed,Saghir Ahmad(Senior Adv.),Santosh Kumar Rai Counsel for Opposite Party :- G.A.,Anuj Srivastava Hon'ble Om Prakash-VII,J.
This is the third bail application moved on behalf of the applicant.
Heard Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Sharique Ahmed and Shri Santosh Kumar Rai, learned counsel for the applicant and Shri G.S. Chaturvedi, learned Senior Advocate assisted by Shri Anuj Srivastava, learned counsel for the informant as well as learned A.G.A for the State and perused the record.
It is submitted by learned Senior Counsel appearing for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. It is further submitted that after rejection of the first bail application moved on behalf of the applicant he approached the Apex Court through special leave petition but the same was withdrawn by the applicant with liberty to approach the trial court. Learned Senior Counsel appearing for the applicant also submits that applicant moved fresh bail application before the concerned Magistrate but the same was rejected. Thereafter, bail application was moved before the Sessions Judge concerned but it was also rejected, then second bail application was moved before this Court, which was also rejected on 06.03.2019 (annexure no. 41). It is further submitted that at the time of disposal of second bail application, offences levelled against the applicant were only under Sections 406 & 420 IPC. Offence under Section 409 IPC was added by the Investigating Officer after rejection of the second bail application and submission of charge sheet and also after taking of cognizance. At this juncture, learned counsel for the applicant referred to annexure no. 44 and further argued that Investigating Officer concerned himself has recorded that offence under Section 409 IPC is not made out in the present matter. Concerned Magistrate has also rejected the prayer for adding offence under Section 409 IPC with the observation that cognizance has been taken in the matter on the charge sheet and whether offence under Section 409 IPC is made out or not will be seen at the time of framing of charge. Referring to the punishment provided for the offence under Sections 406 & 420 IPC, it is further submitted that maximum sentence for the offence under Section 406 IPC is of three years and for the offence under Section 420 IPC is of seven years. In this matter applicant is in jail since 17.01.2017 i.e. for about three years and eight months, which is more than half of the maximum sentence provided for the offence under Section 420 IPC. At this juncture, learned Senior Advocate also referred to the provisions of Section 436-A Cr.P.C. and argued that applicant is entitled to be released on bail as he has served out more than half of the period of punishment provided for the alleged offences. It is further submitted that offence under Section 409 IPC is not made out in the present matter. The applicant has no criminal history. In case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
On the other hand, Shri G.S. Chaturvedi, learned Senior Advocate as well as learned AGA opposing the prayer for bail argued that a prima facie case for all the offences levelled against the applicant is made out. All the grounds taken in the third bail application have already been discussed while deciding the first and second bail applications. Applicant cannot be enlarged on bail allowing third bail application simply on the ground that he is in jail for about three years and eight months. Thus, prayer for rejection of the bail is made.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record.
In this matter, although first and second bail applications moved on behalf of the applicant on different grounds have been rejected on merits yet in the third bail application applicant has taken recourse to the provisions of Section 436-A Cr.P.C. on the ground that applicant is in jail in this matter for about three years and eight months and offence under Section 409 IPC was added in the present matter after taking cognizance and rejection of first and second bail applications.
Hence, considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, evidence, complicity of accused, provisions of Section 436-A Cr.P.C. and maximum sentence provided for the offence under Sections 406 & 420 IPC and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The third bail application is allowed.
Let the applicant Rishabh Jain involved in Case Crime No. 135 of 2016, under Sections 406, 409, 420, 120-B IPC, P.S. Kakadev, District - Kanpur Nagar be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. 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.
6. The applicant shall deposit his passport before the concerned Court at the time of furnishing of bail bond and if he has no passport, he shall swear it on an affidavit within the same period and shall not leave the country without prior permission of the Court concerned.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
The party shall file computer generated copy of this order downloaded from the official website of High Court, Allahabad. 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 :- 9.9.2020 Sanjeet