Allowed

Gyan Prakash Upadhyay v. State of U.P. Thru. Prin. Secy. Deptt. Home Govt. Lko

Allahabad HC8 Nov 2024BAIL/11246/2024

Case brief

AI extract

What is this about?

Regular bail application in a cheating/criminal breach of trust case concerning investments in Shine City companies. The court held that pendency of other cases cannot itself justify refusal of bail and allowed bail on conditions.

What did the court decide?

Applicant released on bail on furnishing personal bond with two sureties, subject to six conditions.

Gyan Prakash Upadhyay vs State of U.P. Thru. Prin. Secy… — Bail and Remand | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:74373

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Court No. - 33

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11246 of 2024

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Applicant :- Gyan Prakash Upadhyay Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Home Govt. Lko Counsel for Applicant :- Raj Nath Singh,Prateek Tewari Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Sri Prateek Tewari, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

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The present bail application has been filed on behalf of applicant Gyan Prakash Upadhyay, under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 05 of 2020, under Sections 420, 409, 467, 468, 471, 120B of the Indian Penal Code, registered at Police Station- Gomti Nagar, District- Lucknow, after rejecting the bail application by Special Judge (P.C.Act) C.B.I., Court No.3, Lucknow, vide order dated 05.08.2024.

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As per the F.I.R. dated 02.01.2020, which has been lodged against Sri Vivek Mishra, under Sections 420, 409 of the IPC stating that the first informant and his elder brother invested Rs. 1,00,000/each as advance in Shine City Floor Media Pvt. Ltd. and Shine City Infraproject Pvt. Ltd through named accused Vivek Mishra and they deposited total amount of Rs. 4,56,250/- in the company. The company issued five cheques which have been dishonoured.

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Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the applicant was not named in the FIR. It is further submitted that during the course of the investigation, the name of the applicant is surfaced on the basis of President of Group of investors. It is further submitted that Rashid Nasim, Asif Nasim and Mohd. Izhar Ansari are the Directors of the company. It is further submitted that co-accused persons Asif Nasim and Mohd. Izhar Ansari are in judicial custody. It is further submitted that all the allegations are made against the named co-accused, Vivek Mishra and Directors of the alleged

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company. It is further submitted that there is no pre-summoning evidence with regard to the offences punishable under Sections 420, 409, 467, 468, 471, 120B of IPC.

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It is further submitted that co-accused Abhishek Kumar Singh @ Abhishek Thakur having similar role has been granted bail by this Court in Criminal Misc. Bail Application No. 9532 of 2022 vide order dated 02.09.2022.

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He has next argued that the applicant has The applicant has a criminal history of 13 cases but thereafter on 15.07.2024, the applicant has been implicated in 25 other cases, which has been explained in paragraph 24 and 25 of the affidavit. All the offences are punishable up to seven years imprisonment. The applicant is languishing in jail since 15.07.2024.

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Learned counsel for the applicant has relied upon the judgments of Apex Court in Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu and another, (2012) 9 SCC 446 and Prabhakar Tiwari Vs. Statv of UP. and another, (2020) 11 SCC 648 wherein the Apex Court has observed that pendency of other criminal cases against the accused may itself cannot be a basis for refusal of bail.

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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.

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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].

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No material or circumstances has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witnesses in previous criminal history.

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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

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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.

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Let the applicant Gyan Prakash Upadhyay 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 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.

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

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(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.

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(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.

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

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(vi) The applicant 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 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.

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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 applicant, 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

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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 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.

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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.

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Order Date :- 8.11.2024 Akram

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Digitally signed by :- MOHAMMAD AKRAM High Court of Judicature at Allahabad, Lucknow Bench

Gyan Prakash Upadhyay v. State of U.P. Thru. Prin. Secy. Deptt. Home Govt. Lko

Case brief

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Gyan Prakash Upadhyay v. State of U.P. Thru. Prin. Secy. Deptt. Home Govt. Lko

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