Allowed

Brijesh Kumar Awasthi v. State of U.P. Thru. Prin.Secy. Addl. Chief Secy. Home

Allahabad HC28 Mar 2024BAIL/3470/2024

Case brief

AI extract

What is this about?

Bail application under Sections 409 and 120B IPC for alleged impersonation and manipulation of sale deeds and trial Court records. With charge not framed two years after the charge sheet and offences triable by a Magistrate, relying on Javed Gulam Nabi Shaikh on speedy trial under Article 21, the court granted bail.

What did the court decide?

Applicant released on bail on furnishing personal bond with two sureties of Rs.30,000 each, with conditions including no tampering and no visit to courts/registry offices.

Brijesh Kumar Awasthi vs State of U.P. Thru… — Cheating and Forgery | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:71896

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Court No. - 7

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3470 of 2024

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Applicant :- Brijesh Kumar Awasthi Opposite Party :- State Of U.P. Thru. Prin.Secy. Addl. Chief Secy. Home Counsel for Applicant :- Shachindra Pratap Singh,Prateek Tewari,Ramesh Pratap Singh,Shailendra Kumar Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Pankaj Bhatia,J.

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1. Heard learned counsel for the applicant; Shri V.K. Shahi, learned AAG assisted by Shri Anurag Verma, learned counsel for the State; Shri Dadu Ram Shukla, learned counsel for the informant/respondent and perused the record.

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2. The applicant seeks enlargement on bail in FIR No.798 of 2016, under Section 409, 120B IPC, P.S. Kotwali Nagar, District Gonda.

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3. In terms of the FIR, the main allegation was that the applicant by impersonation manipulated the sale deeds as well as the trial Court records and has committed the offence against the informant as well as against public records. Subsequently, it is argued by learned counsel for the applicant that, the applicant was enlarged on bail in one of the cases which is similar in nature being Criminal Misc. Bail Application No.2416 of 2024 vide order dated 03.10.2024. He relies upon a judgment of the Supreme Court in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Anr.; Criminal Appeal No.2787 of 2024 decided on 03.07.2024 to argue that although the applicant is in custody since long and the charge sheet was filed in the month of March, 2023, even the charge has not been framed and none of the witnesses has been examined.

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4. In sum and substance, the contention of learned counsel for the applicant is that the charge against the applicant is to be established based upon documentary evidence and considering the fact that even the charge has not been framed, the applicant cannot be continued in prolonged pre-trial detention indefinitely.

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5. Learned counsel for the opposite party strongly opposed the bail application by arguing that in respect of the bail granted to the applicant on 03.10.2024, a bail cancellation application has been moved which is likely to be listed soon. It is, thus,

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proposed to be argued that present application be considered after the bail cancellation application is decided by the concerned Court.

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6. It is further argued that the applicant is guilty of manipulating even the Court records and relies upon the observation made wherein it was alleged that in the search carried out from the home of the applicant, trial Court records were recovered. He, thus, argues that against the applicant, several other cases are being investigated which are likely to be adversely affected in case the applicant is enlarged on bail.

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7. Learned AAG also opposed the bail application by arguing that the allegations against the applicant are substantial, however, he does not dispute that the applicant has been enlarged on bail in one of the similar cases on 03.10.2024 and the State has not filed any bail cancellation application.

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8. Learned counsel for the respondent also places reliance upon the judgment in the case of Prakash Kadam & etc. v. Ramprasad Vishwanath Gupta & Anr.; AIR 2011 SC 1945 wherein in Para 17, the Supreme Court had observed that if the allegations against the accused are very serious, the bail may be cancelled even if he has not misused the said bail granted to him.

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9. Considering the submissions made at the Bar, what is clear is that despite the charge sheet being filed in the month of March, 2023, no charge has been framed till date by the trial court; the allegation and the accusation against the applicant lead to offences which are triable by the Magistrate. The Supreme Court in the case of Javed Gulam Nabi Shaikh (supra) in Para 19 has observed as under:

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"19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime ."

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10. Considering the fact that the applicant has suffered pre-trial detention of more than two years and even the charge has not been framed, it can be safely presumed that there is no likelihood of the trial being concluded in the near future, as such, the applicant is entitled to be enlarged on bail. In view thereof, the application is allowed.

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11. Let the applicant Brijesh Kumar Awasthi be released on

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bail in aforesaid FIR number on his furnishing a personal bond with two sureties of Rs.30,000/- each to the satisfaction of court concerned with the following conditions:

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(a) The applicant shall execute a bond to undertake to attend the hearings;

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(b) The applicant shall not commit any offence similar to the offence of which he is accused or suspected of the commission; and

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(c) 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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(d) The applicant shall not visit any office of the District Courts, any office of the Sub-Registrar or any office of the Tehsildar.

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12. The victims and the witnesses would be entitled to protection if they move an appropriate application before the trial Court.

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Order Date :- 24.10.2024 nishant

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Digitally signed by :- NISHANT MOHAN High Court of Judicature at Allahabad, Lucknow Bench

Brijesh Kumar Awasthi v. State of U.P. Thru. Prin.Secy. Addl. Chief Secy. Home

Case brief

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Brijesh Kumar Awasthi v. State of U.P. Thru. Prin.Secy. Addl. Chief Secy. Home

Case brief

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