- (1.) Heard Sri Santosh Kumar Giri, learned counsel for the applicant, the learned A.G.A and perused the record.
(2.) This is an application preferred under Section 439 (2) of the Code of Criminal Procedure, 1973 for cancelling the bail of Yuvraj Singh, the opposite party no. 2 which has been allowed by the Chief Judicial Magistrate, Bareilly vide order dated 29.11.2019 in Case Crime No. 629 of 2018 under Sections 420, 406 of the Indian Penal Code, 1860 under Section 69 of Indian Stamp Act, 1899 and under Section 25 of Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 registered at Police Station Baradari, District Bareilly.
(3.) Learned counsel for the applicant argued that the opposite party no. 2 is the Director of Alliance Builders and Construction Limited, Bareilly. He had developed a colony in the year 2007 in the name of Super City in Bareilly in which the first informant and others took flats and paid money for it. It is further argued that in the present matter a suit has been filed by the accused himself which was after lodging of the F.I.R. The filing of the said suit was a mischievous act of the accused just in order to take benefit of the same in the present matter. It is further argued that the court below erred in allowing the bail application of the accused by overlooking the fact that during investigation sufficient evidence has been collected against the accused and as per the law laid down by the Apex Court it is for the trial court to weigh the statement and the evidence collected during investigation and arrive at its own conclusion. To make an enquiry into reliability and genuineness of the allegations made in the First Information Report and the material collected during investigation on the basis of which charge-sheet is submitted at the time of deciding a bail application is not a proper appreciation by the court below and the court below overstepped its jurisdiction. It is further argued on the basis of averments in para 10 of the affidavit that though the opposite party no. 2 / accused has delivered the possession of the land / house in dispute several years back, but sale deed has not been executed by him. Further on the pleading in para 11 of the affidavit it is argued that the opposite party no. 2 did not have title of the said property and hence he could not have executed any sale deed in favour of the allottees. It is then argued as per para 12 of the affidavit that the intention of the opposite party no. 2 / accused was dishonest from the very inception itself. The petition for quashing of charge-sheet dated 24.12.2018 in the matter has been dismissed by a co-ordinate Bench of this Court vide order dated 01.10.2019, the copy of which is annexed as Annexure- 2 to the affidavit. It is then argued that on the basis of para 15 of the affidavit that opposite party no. 2 / accused surrendered on the same day i.e. on 29.11.2019, moved his bail application on the same day which has been allowed on the same day itself. It is further argued that the opposite party no. 2 / accused after being released on bail is misusing the liberty of bail and is also tampering with the prosecution witnesses. It is thus argued that the present matter is a heinous and a grievous criminal case and as such the bail granted to opposite party no. 2 is liable to be cancelled.;