HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. – 27
Case :- BAIL No. – 5450 of 2019
Applicant :- Afroj Alam
Opposite Party :- State of U.P.
Counsel for Applicant :- Shivam Sharma,Devi Prasad Maurya
Counsel for Opposite Party :- G.A.
Hon’ble Karunesh Singh Pawar,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
It has been contended on behalf of applicant that in the entire F.I.R. there is no allegation against the present applicant rather the same are against the co-accused Nazmul Hussan. It is further contended that company, namely, Unique Care Real Developers India Limited has not been made the accused. It has been further contended that the chargesheet has been filed against the individual accused persons. The applicant is the only one who has surrendered before the trial court. It has been further contended that the prosecution has not passed any liability upon the company hence specific ingredients of Section 406 I.P.C. is absent. So far as the applicant is concerned, no allegation of entrustment exists, which is sina qua non for the offence under Section 406 I.P.C.
Learned counsel for applicant relies on the judgment of the Hon’ble Supreme Court in Criminal Appeal No.1694 of 2008 decided on 24.10.2018 (R. Kalyani Vs. Janak C. Mehta) wherein it has been held that the applicant cannot be charged with Sections 406, Section420 I.P.C. with regard to offence alleged against the company unless specific vicarious liability is laid down under a special statute and not a general law as the SectionI.P.C. and, therefore, the applicant cannot passed any criminal liability. It is lastly contended that applicant is in jail since 25.03.2019 and he has no previous criminal antecedent.
It is further submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Without expressing any opinion on the merits of the case and considering the nature of accusation and the severity of punishment in case of conviction and for the period for which he is in jail, the applicant is entitled to be released on bail in this case.
Let the applicant, Afroj Alam involved in Case Crime No. 368/2017, under Sections 406, Section420 I.P.C., Police Station – Kotwali Gola, District – Lakhimpur Kheri be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) 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.
(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 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.
(v) 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.
(vi) 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.
Order Date :- 6.11.2019