Allowed

Shivshankar v. State of U.P. and Another

Allahabad HC19 Apr 2023CRLA/8696/2022

Case brief

AI extract

What is this about?

The Special Judge rejected bail in a cheating case under the SC/ST Act. This High Court set aside that order, citing prejudice to the accused, jail overcrowding, and lack of consideration of the defence case, and granted bail subject to a bond and prior restitution of the misappropriated funds.

What did the court decide?

Crimes appeal allowed; bail granted subject to furnishing a personal bond, two sureties, and transferring Rs.25,000/- to the informant within six weeks.

Shivshankar Vs State of U.P. and Another — Cheating and Forgery | Allahabad HC (2023)

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Court No. - 80

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Case :- CRIMINAL APPEAL No. - 8696 of 2022

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Appellant :- Shivshankar Respondent :- State of U.P. and Another Counsel for Appellant :- Jitendra Pal Singh,Pradeep Kumar Singh Counsel for Respondent :- G.A.

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Hon'ble Siddharth,J.

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List has been revised.

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As per office report dated 06.12.2022, notice on opposite party no.2 has been served, but no one has put in appearance on behalf of opposite party no.2 to oppose this appeal.

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Heard learned counsel for the appellant; learned AGA for opposite party no.1 and perused the material placed on record.

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The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant to set aside the impugned order dated 04.11.2022, whereby the Special Judge, SC/ST Act, Pilibhit has rejected the bail application of the appellant moved by him in Case Crime No. 358 of 2021, under Sections 420, 406, 504, 506, 323 IPC and Section 3(1)(Da), 3(1) (Dha) & 3(2)(5A) of SC/ST Act, Police Station Sungarhi, District Pilibhit.

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There is allegation against the applicant of committing offence of cheating, criminal breach of trust while working as agent in Finance Company. He is alleged to have taking Rs.25,000/- from the informant for the purpose of investment and amount has been misappropriated. He is languishing in jail since 31.10.2022. In case, appellant is released on bail, he will not misuse the liberty of bail.

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Per contra, learned A.G.A. has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the appellant and submits that the allegations involved are very serious in nature. But he could not point out any material to the contrary. He further submits that in case the appellant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

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It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the court below has not properly considered the case of the appellant. Hence, in view of the above consideration, the order of rejection of bail passed by the court below dated 04.11.2022 is, hereby, set aside.

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Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the appellant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; appellant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the

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Constitution of India, considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, Court is of the opinion that subject to the condition appellant transferring Rs.25,000/- in favour of the informant online in his bank account within a period of six weeks, he shall be enlarged on bail.

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Let appellant, Shivshankar 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:

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(i) The appellant 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.

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(ii) The appellant shall not pressurize/intimidate the prosecution witnesses.

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(iii) The appellant 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 of Cr.P.C.

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(iv) The appellant 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.

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(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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(vi) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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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 appellant 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.

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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 appellant, if there is no other legal impediment.

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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.

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The criminal appeal is allowed.

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Order Date :- 19.4.2023 SS

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Digitally signed by :- SURENDAR SINGH NARANG High Court of Judicature at Allahabad

Shivshankar v. State of U.P. and Another

Case brief

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Shivshankar v. State of U.P. and Another

Case brief

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