In a bail application in a complaint case regarding missing jewellery from a bank locker. The applicant was named late in the investigation. The court granted bail conditioned on attending hearings and not seeking adjournments.
Granted bail on personal bond and two local sureties of like amount subject to conditions of appearance and no adjournments.
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Court No. - 59
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38572 of 2022
Applicant :- Shubham Malviya Opposite Party :- State of U.P. Counsel for Applicant :- R.V. Pandey,Amit Sonkar Counsel for Opposite Party :- G.A.
Hon'ble Shiv Shanker Prasad,J.
Heard Mr. Anoop Trivedi, learned Senior Advocate assisted by Mr. R.V. Pandey, learned counsel for the applicant and Mr. Shravan Kumar Ojha, learned A.G.A. for the State as well as perused the entire material available on record.
The present bail application has been filed by the applicantShubham Malviya, with a prayer to enlarge him on bail in Crime No. 032 of 2022, under Sections 409/380/411 I.P.C., Police Station-Feelkhana, District-Kanpur Nagar, during the pendency of trial.
The present first information report has been lodged by Sita Gupta against Branch Manager on 31st March, 2022 at 18.59 hours alleging therein that the first informant was a resident of the city. The joint savings account bearing number 1380122336 along with locker number-414 was being maintained in the name of the husband of the informant for the last 35 years, in the Central Bank of India, Branch-Karachikhana. The said locker has been used for the last 35 years. In the said locker the informant had kept gold and silver jewellery received from her forefathers/parents. The informant used to visited the branch and inspect the said locker from time to time as per the provision of the bank and had also made a list before keeping the jewellery. The informant went to the branch on 7th January, 2022, and told the manager of the bank to get her locker opened then an employee of the Bank came and asked for her key by applying his key, then the said locker was opened. The informant saw the jewellery kept in her locker and found that her 2 pairs of earrings including 1 pair of earrings, 1 pair of earrings, 2 pairs of plates, 3 pairs of tops, 5 small nose rings, 1 necklace, 1 necklace, 1 oyster locket, 1 plain bangle, were not in the locker. All the said jewellery were of gold and whose total weight would be estimated to be 350 grams. For the missing of the aforesaid jewellery from her locker the informant has lodged the said first information report.
It has been argued by the learned counsel for the applicant that the applicant is not named in the first information report and during the course of investigation his name has surfaced. The present first information report lodged against the Branch Manager after an inordinate delay for which no plausible explanation has been given which makes the prosecution story doubtful. It is no doubt true that the applicant is the custodian of the lockers of the Branch in question but he has not committed any offence as he has no connection with the alleged offence. There is no credible evidence against the applicant to show that he had been involved in the
alleged offence in any manner. The name of the applicant has come into picture for the first time in the extra judicial confessional statement of accused person which has no evidentiary value as per Sections 25 and 26 of the Indian Evidence Act. It is further submitted that the first informant in her statement recorded under Section 161 Cr.P.C., has stated that she has already been paid Rs. 17.50 lacs by the Bank as compensation, meaning thereby that the fault in misplacing or missing of the articles kept in the lockers of the Bank is not on the part of the applicant. It is then submitted that the co-accused, namely, Karan Rai, who has opened the lockers has already been enlarged on bail by this Court vide order dated 28th September, 2022 passed in Criminal Misc. Bail Application NO. 28006 of 2022. The case of the applicant is similar and identical to that of the aforesaid co-accused. As such the applicant is also liable to be enlarged on bail.
The applicant has no previous criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 11th April, 2022. As such the applicant has undergone more than eight months of incarceration.
Per contra learned A.G.A. has opposed the bail prayer of the applicant but he could not dispute the factual submissions as urged by the learned counsel for the applicant.
Considering the nature of the offence, provision for initiation of cases and release the accused, material/evidence brought on record, complicity of the accused, severity of punishment, the submissions made by the learned counsel for the parties, as well as the dictum of Apex Court in the case of Dataram Singh Versus State of U.P. and another, reported in (2018) 3 SCC 22, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court 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 against him in accordance with law.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
(Shiv Shanker Prasad, J.)
Order Date :- 23.12.2022
Sushil/-
Digitally signed by :- SUSHIL KUMAR SINGH High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant named late in FIR and having no prior antecedents is entitled to bail in a cheating/graffity impersonation by the accused person in the instant case.
Whether the lack of credible evidence and prior compensation paid to the informant warrants bail for the applicant without running risk of fleeing the court.
Colour shows how this judgement treated each authority
Dataram Singh Versus State of U.P. and anotherReferred¶12
(2018) 3 SCC 22 · Who else cites this
6 provisions across 3 enactments
Shubham Malviya
Shiv Shanker Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
