High Court
Case Details
Court No. - 64 Case :- CRIMINAL APPEAL No. - 6405 of 2024 Appellant :- Dr. Vijay Singh Respondent :- State of U.P. and Another Counsel for Appellant :- Anuj Kumar Singh,Shobhit Pratap Singh,Vineet Vikram Counsel for Respondent :- G.A.,Sanjay Kumar Yadav Hon'ble Rajeev Misra,J. 1. Heard Mr. Vineet Vikram, the learned counsel for appellant and Mr. Sanjay Kumar Yadav the learned counsel representing C.B.I. 2. Perused the record. 3. Admit. 4. Summon the lower court record. 5. List this appeal for hearing thereafter in turn. Order Date :- 4.7.2024 YK Court No. - 64 Case :- CRIMINAL APPEAL No. - 6405 of 2024 Appellant :- Dr. Vijay Singh Respondent :- State of U.P. and Another Counsel for Appellant :- Anuj Kumar Singh,Shobhit Pratap Singh,Vineet Vikram Counsel for Respondent :- G.A.,Sanjay Kumar Yadav Hon'ble Rajeev Misra,J. Order on the application for suspension of sentence.
Legal Reasoning
1. Heard Mr. Vineet Vikram, the learned counsel for appellant and Mr. Sanjay Kumar Yadav the learned counsel representing C.B.I. 2. Perused the record. 3. Feeling aggrieved by the judgement and order dated 30.05.2022 passed by Special Judge Anti Corruption, C.B.I./ Additional Sessions Judge, Ghaziabad in Special Case NO. 02 of 2017 (CBI vs, Dr. Vijay Singh) under Section 409 I.P.C. and Section 13 (2) (r) read with Section 13 (1) (c) of P.C. Act, Police Station- CBI, ACB, District-Ghaziabad, whereby applicant/appellant has been convicted under Section 409 I.P.C. and consequently, sentenced to 3 years simple imprisonment alongwith a fine of Rs. 1,00,000/-and in case of default in payment of fine, applicant/appellant is to undergo two month additional imprisonment, under Sections 13 (2) (r) read with Section 13 (1) (c) of P.C. Act, applicant/appellant has been sentenced to 3 years simple imprisonment alongwith fine of Rs. 1, 00,000/- and in case of default in payment of fine, applicant/appellant is to undergo two months additional imprisonment, applicant/appellant has filed aforementioned criminal appeal. Impugned judgement and order further records that both the sentences shall run concurrently. 4. Subsequent to the judgment and order dated 18.05.2024, applicant/appellant was taken into custody. He, therefore, filed an application under Section 389 (3) Cr.P.C. before court below praying therein that he be enlarge don interim bail for the period of limitation provided for filing an appeal. The said application was allowed by Court below, vide order dated 18.05.2024. Accordingly, applicant/appellant was enlarged on interim bail for the period of limitation provided for filing an appeal.Consequently, applicant/appellant has filed above-mentioned application 389(1) Cr.P.C. 5. Learned counsel for applicant/appellant submits that though the applicant/appellant is a convicted accused yet he is liable to be enlarged on bail. According to the learned counsel for applicant/appellant, the amount alleged to have been embezzled by the applicant/appellant i.e. Rs. 4 Lacs, which has already been deposited by applicant/appellant, as is evident from the recital occurring at page 9 of the impugned judgement and order. It is further submitted that the disputed cheque by which, the said amount was withdrawn by applicant/appellant contained the signatures of applicant/appellant and Dr. Vinod Kumar. As such, an offence under Section 409 Cr.P.C. cannot be inferred only against the applicant/appellant. This aspect of the matter has been completely ignored by Court below. Furthermore, applicant/appellant has since retired and is now aged about 65 years. As such, applicant/appellant is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C. Applicant/appellant was on bail during the pendency of trial. However, he did not misuse the liberty of bail. Since the sentence awarded against the applicant/appellant is 3 years, therefore, Court below has itself enlarge the applicant/appellant on interim bail. There is no likelihood of the appeal being heard in near future on account of heavy pendency of the appeals before this Court. 6. Even otherwise, applicant/appellant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. As such, the interim bail granted to the applicant/appellant by Court below is liable to be made absolute. In case, the bail granted to the applicant/appellant by Court below is made absolute, he shall not misuse the liberty of bail and shall co-operate in the hearing of present criminal appeal. 7. Per contra, Mr. Sanjay Kumar Yadav, the learned counsel representing C.B.I. has vehemently opposed the prayer for bail. He submits that since the applicant/appellant is a convicted accused, therefore, he does not deserve any indulgence by this Court. According to the learned counsel representing C.B.I., interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of releasing the applicant/appellant on bail during the pendency of appeal. However, he could not dislodge the factual and legal submissions urged by the learned counsel applicant/appellant with reference to the record at this stage. 8. Having heard the learned counsel for applicant/appellant, Mr. Sanjay Kumar Yadav, the learned counsel representing C.B.I., upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant/appellant and coupled with the fact that since the embezzled amount i.e. Rs. 4 Lacs has already been deposited by the applicant/appellant as is evident from the recital occurring at page 9 of the paper book, the said fact is not disputed by the learned counsel representing C.B.I., the disputed cheque contained signatures of the applicant/appellant as well as Dr. Vinod Kumar but criminal prosecution has been initiated only against Dr. Vinod Kumar i.e. the applicant/appellant, in view of above, offence under Section 409 I.P.C. cannot be attracted only against the applicant/appellant, the sentence awarded by Court below against applicant/appellant is 3 years respectively, both the sentences are to run concurrently, applicant/appellant was on bail during the pendency of trial, however, the applicant/appellant did not misuse the liberty of bail, in view of heavy pendency of appeals before this Court, there is no likelihood of the present appeal being heard in near future, the applicant/appellant has since retired and is now aged about 65 years, therefore, prima-facie he is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C., the clean antecedents of applicant/appellant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned counsel representing C.B.I. in opposition to the prayer for bail, but without making any comment on the merits of the case, applicant/appellant has made out a case for bail. 9. Consequently, the short term bail granted to the applicant/appellant by Court below is, hereby, made absolute. 10. However, applicant/appellant shall deposit the fine awarded by Court below within a period of one month from today. In case of default, the bail granted to the applicant/appellant shall stand cancelled and he shall be taken into custody forthwith to serve out the sentence. Order Date :- 4.7.2024 YK