High Court
Case Details
Neutral Citation No. - 2024:AHC:120531 Court No. - 64 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 167 of 2024 Applicant :- Satya Prakash Srivastava Opposite Party :- State of U.P. Counsel for Applicant :- Dinesh Kumar Srivastava,Siya Ram Verma Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Dinesh Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State, opposite party-1. 2. Perused the record. 3. Instant bail application has been filed by applicant-Satya Prakash Srivastava seeking his enlargement on anticipatory bail in Case Crime No. 180 of 2009 under Sections 193, 198, 218, 420, 467, 468, 471, 120B I.P.C. and Sections 13 (1) (E) read with Section 13 (2) of Prevention of Corruption Act 1988, Police Station- Kotwali,, District Mirzapur, during the pendency of trial i.e. Sessions Trial No. 602 of 2022 (State Vs. Bharat Ratna Ashok and others) under Sections 193, 198, 218, 467, 468, 471, 120B I.P.C. and Sections 13 (1) (D) read with Section 13 (2) of Prevention of Corruption Act 1988, Police Station- Kotwali,, District Mirzapur, now pending in the Court of Special Judge (P.C. Act), Court no.2, Varanasi. 4. Record shows that in respect of an incident which is alleged to have occurred in between 20.02.2001 to 03.09.2003, a delayed
Facts
F.I.R. dated 24.06.2009 was lodged by first informant, Dev Prabhakar Pathak, Inspector U.P. Vigilance Establishment, Varanasi and was registered as Case Crime No. 180 of 2009 under Sections 193, 198, 218, 420, 467, 468, 471, 120B I.P.C. and Sections 13 (1) (E) read with Section 13 (2) of Prevention of Corruption Act 1988, Police Station- Kotwali,, District Mirzapur. In the aforesaid F.I.R. eight persons namely Bharat Ratna Ashok,
Legal Reasoning
then also account said to have been opened in the name of the applicant was not opened by the applicant himself but same was opened by the co- accused and amount said to have been kept in the said account was also kept by the co-accused. Offences levelled in the present matter are not attracted against the applicant. Till date no charge sheet has been submitted in the matter. Applicant has cooperated to the investigating agency and he is also ready and willing to cooperate with investigation. No prima facie case is made out. Applicant has no criminal history. If the applicant is enlarged on bail, he will not misuse the liberty and will cooperate with the investigation.The applicant has apprehension of his arrest by the police any time. Learned A.G.A. opposed the prayer and prayed for some time to file counter affidavit in the matter. In the circumstances, as requested, learned AGA is allowed two weeks' time to file counter affidavit. As an interim protection, till the next date fixed for final hearing on this application, the applicant is granted anticipatory bail in the aforesaid case crime number. In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions:- (i) The applicant shall make himself available for interrogation by a police office as and when required. (ii) 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 from disclosing such facts to the Court or to any police office. (iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned. (iv) The party shall file self-attested computer generated copy of this order downloaded from the official website of High Court Allahabad. 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. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant. List this case on 29.11.2021 before the appropriate Bench. Order Date :- 6.10.2021 " 7. On the above premise, the learned counsel for applicant submits that the case of present applican tis similar and identical to aforementioned co-accused, who have already been granted the benefit of anticipatory bail. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforementioned co-accused, who have already been granted the benefit of anticipatory bail. He therefore contends that in view of above and for the facts and reasons recorded in the bail orders of aforementioned co-accused, the benefit of anticipatory bail is also liable to be extended in favour of applicant. 8. According to the learned counsel for applicant, the occurrence giving rise to present criminal proceedings is alleged to have occurred in between 20.02.2001 to 03.09.2003. However, the F.I.R. in respect of the same was lodged belatedly on 24.06.2009. As such, there is a delay of approximately seven years in lodging the F.I.R. The learned counsel for applicant has then invited the attention of Court to the F.I.R. and on basis thereof, he submits that though the F.I.R. has been lodged belatedly but no explanation has been offered in the F.IR.. for explaining the delay/laches in lodging the F.I.R. There is nothing on record on the basis of which, it can be inferred that delay in lodging the F.I.R. stands sufficiently explained. He therefore contends that the very prosecution of applicant cannot be sustained. To buttress his submission, he has relied upon the following judgements of Supreme Court:- (a) P. Ramchandra Rao Vs. State of Karnataka, (2002) 4 SCC 578. (b) P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866. (c) Hasmukhlal D. Vora and Another Vs. State of Tamil Nadu (2022) 15 SCC 164 9. According to the learned counsel for applicant, though the F.I.R. was lodged on 24.06.2009 and the requisite police report in terms of Section 173 (2) Cr.P.C. was submitted on 11.10.2021 yet at no point of time neither non-bailable warrant nor coercive process under Section 82 Cr.P.C. was issued against applicant during the period of investigation. 10. It is then contended by the learned counsel for applicant that after the submission of police report dated 11.10.2021, cognizance was taken by court concerned upon same in terms of Section 190 (1) (b) Cr.P.C. and summons were issued to the charge sheeted accused. With reference to the order sheet of the criminal case pending before court, copy of which is on record as Annexure 5 to the affidavit filed in support of present application for bail, the learned counsel for applicant contends that neither non-bailable warrant has been issued against applicant nor any coercive process under Section 82 Cr.P.C. has been issued against applicant by court below. On the above premise, it is thus urged that custodial arrest of applicant is not absolutely necessary for conducting the trial of applicant pending before court below. 11 Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. The Investigating Officer upon completion of statutory investigation of concerned case crime number has already submitted the police report in terms of Section 173 (2) Cr.P.C. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, no such such circumstance has emerged on the record, necessitating the custodial arrest of applicant during the pendency of trial. Applicant is a government servant and in case the benefit of anticipatory bail is extended in favour of applicant then in that eventuality it cannot be said that applicant shall flee away from the trial. On the above premise, it thus urged by the learned counsel for applicant that liberty of applicant is liable to be protected by this Court by extending the benefit of anticipatory bail in his favour. In case the benefit of anticipatory bail is granted in favour of applicant, applicant undertakes that he shall not misuse the liberty of bail and shall co- operated with the trial. 12. Per contra, the learned A.G.A. for State has vehemently opposed this application for anticipatory bail. Learned A.G.A. submits that since applicant is a named and charge-sheeted accused, therefore, he does snot deserve any indulgence by this Court. Once the police report (charge-sheet) has been submitted against applicant and he has been summoned by court below remedy lies to applicant to approach the court below for grant of regular bail. No exceptional circumstance has emerged so as to warrant interference by this Court in exercise of jurisdiction under Section 438 Cr.P.C. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. 13. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that three of the named accused have already been granted the benefit of anticipatory bail, the learned A.G.A. could not point out any such distinguishing feature in the case of present applicant so as to distinguish the case of present applicant from co-accused in whose favour the benefit of anticipatory bail has been granted by this Court, therefore, in view of above and for the facts and reasons recorded in the bail orders of some of the named and charge- sheeted accused, the benefit of anticipatory bail is also liable to be extended in favour of applicant on the ground of parity, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above the learned A.G.A. for State could not point out any such circumstance from the record necessitating custodial arrest of applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the F.I.R. giving rise to present application for anticipatory bail was lodged on 24.06.2009 with delay inasmuch as the occurrence giving rise to present criminal proceedings is alleged to have occurred in between 20.02.2001 to 03.09.2003, requisite police report in terms of Section 173 (2) Cr.P.C. was submitted on 11.10.2021 i.e. after almost 12 years from the date of lodging of the F.I.R., consequently, the very prosecution of applicant prima-facie cannot be sustained in view of the law laid down by Apex Court in P. Ramchandra Rao (supra), P. Rajagopal (supra) and Hasmukhlal D. Vora and Another (supra), no coercive measures were issued by court below against applicant on the application of Investigating Officer during the entire period of investigation, there is nothing on record to show that either non-bailable-warrant has been issued against applicant or coercive process under Section 82 Cr.P.C. has been issued against applicant by court below where the trial of applicant and other co-accused is pending, in view of above, this Court finds that custodial arrest of applicant is not absolutely necessary in conducting the trial of applicant, the clean antecedents of applicant, applicant is a government servant and in case he is granted the benefit of anticipatory bail, there are no chances of his fleeing away from the trial, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for anticipatory bail, but without making any comments on the merits of the case, the liberty of applicant is liable to be protected. I4. Accordingly, this application for anticipatory bail is allowed. 15. In view of above, in the event of arrest, applicant- Satya Prakash Srivastava shall be released on anticipatory bail in Case Crime No. 180 of 2009 under Sections 193, 198, 218, 420, 467, 468, 471, 120B I.P.C. and Sections 13 (1) (E) read with Section 13 (2) of Prevention of Corruption Act 1988, Police Station- Kotwali,, District Mirzapur on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of concerned Court with the following conditions:- (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 her from disclosing such facts to the Court; (ii) The applicant shall not leave India without the previous permission of the Court and if she has passport, the same shall be deposited by her before the S.S.P./S.P. concerned. (iii). In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant. Order Date :- 15.7.2024 YK
Arguments
Smt. Sudharani, Vaibhav Srivastava, Chandrashekhar, Benkteshwar @ Bankoo Shukla, Smt, Urmila Devi, Ambresh and Satya Prakash Srivastava have been nominated as named accused. 5. After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by him during course of investigation, he came to conclusion that complicity of named accused is fully established in the crime in question. He accordingly submitted the police report dated 11.10.2021 in terms of Section 173 (2) CR.P.C., whereby named accused including applicant were charge sheeted under Section 193, 198, 218, 467, 468, 471, 120B I.P.C. and Sections 13 (1) (D) read with Section 13 (2) of Prevention of Corruption Act 1988. 6. Learned counsel for applicant contends that named accused, Vaibhav Srivastava, Vankateshwar @ Banku Shukla and Shri Ambresh filed their respective applications for anticipatory bail before this Court and they have already been granted the benefit of anticipatory bail by this Court. For ready reference the same are reproduced herein below in a the chronological manner:- (i) Co-accused Vaibhav Srivastava has been granted the benefit of anticipatory bail by this Court vide order dated 17.03.2021 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 765 of 2021 (Vaibhav Srivastava Vs. State of U.P. and another). For ready reference, the same is reproduced herein under: "Counter affidavit filed today is taken on record. Heard learned counsel appearing for the applicant as well as learned A.G.A. appearing for the State and perused the record. On 18.1.2021, following interim order was passed by this Court: "Heard Shri Malay Prasad, Advocate holding brief of Shri Zain Abbas, learned counsel for the applicant as well as the learned AGA and perused the record. Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Vaibhav Srivastava in Case Crime No. 180 of 2009, under Sections 197, 198, 218, 420, 467, 468, 471, 120-B I.P.C. read with Section 13(2) and 13(e) Prevention of Corruption Act, Police Station - Kotwali, District - Mirzapur. It is submitted by learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. It is further submitted that matter relates to the year, 2003-04. Applicant was aged about 13 years at that time. It is further submitted that no transaction was made by the applicant. If entire prosecution case is taken into consideration then also the person, who allotted the shop or opened the account in the bank concerned in the name of the applicant may be held responsible. No mens- rea to attract the offence against the applicant are made out. No charge sheet has been submitted till today. No prima facie case is made out against the applicant. Applicant has no criminal history. If the applicant is enlarged on bail, he will not misuse the liberty and will cooperate with the investigation.The applicant has apprehension of his arrest by the police any time. Learned A.G.A. opposed the prayer and prayed for some time to file counter affidavit in the matter. In the circumstances, as requested, learned AGA is allowed two weeks' time to file counter affidavit. As an interim protection, till the next date fixed for final hearing on this application, the applicant is granted anticipatory bail in the aforesaid case crime number. In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions:- (i) The applicant shall make himself available for interrogation by a police office as and when required. (ii) 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 from disclosing such facts to the Court or to any police office. (iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned. (iv) The party shall file self-attested computer generated copy of this order downloaded from the official website of High Court Allahabad. 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. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant. List this case on 04.03.2021 before the appropriate Bench." Since nothing incriminating material has come against the applicant in the counter affidavit filed on behalf of the State to recall the order dated 18.1.2021 granting interim protection to the applicant in the anticipatory bail application, therefore, considering the nature of accusation as well as facts and circumstances of the case and hearing the parties, the anticipatory bail application is allowed and the order dated 18.1.2021 is hereby confirmed and made absolute. " (ii) Co-accused Vankateshwar @ Banku Shukla has been granted the benefit of anticipatory bail by this Court Vide order dated 17.05.2023 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 5570 of 2023 (Vankateshwar @ Banku Shukla Vs. State of U.P. and another). For ready reference, the same is reproduced herein under: "1. Heard learned counsel for the applicant and learned A.G.A. for the State. 2. This anticipatory bail application has been filed on behalf of the applicant - Vankateshwar @ Banku Shukla , seeking anticipatory bail in Case Crime No. 180 of 2009, under Sections - 193, 198, 218, 420, 467, 468, 471, 120B , I.P.C., Police Station - Kotwali, District - Mirzapur. 3. Put up this case on 26.07.2023, in the additional cause list before the appropriate Bench. By the said date, counter affidavit be filed by learned A.G.A. 4. Though FIR is belated, charge sheet has been submitted against the applicant on 11.05.2022. At present, learned counsel for the applicant submits, the applicant had participated in the investigation and also no credible material has surfaced against the applicant to establish his complicity in the offence alleged. The only circumstance being considered adverse to the applicant is to deposit of a banker cheque of Rs. 10,200/-. That is described to be of no relevance to the ingredients of the offence alleged. At present, no real apprehension has been expressed by the State of the applicant fleeing from justice, if the present application is allowed. 5. While the bail application has been opposed by learned AGA, without expressing any opinion on the merits of the case, at present, in the totality of circumstances, the applicant is entitled to interim anticipatory bail in this case, at this stage. 6. In the event of arrest of the applicant - Vankateshwar @ Banku Shukla, involved in the aforesaid case crime, he shall be released on interim anticipatory bail till the next date fixed, on his furnishing a personal bond of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the Station House Officer of the police station concerned OR of the court concerned on the following conditions: (i) The applicant shall make himself available for interrogation by a police officer/by the court as may be the case. (ii) 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/her from disclosing such facts to the court or to any police officer or tamper with the evidence. (iii) The applicant shall not leave India without the previous permission of the court. (iv) In default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of interim anticipatory bail granted to the applicant. Order Date :- 17.5.2023 " (iii) Co-accused Shri Ambresh has been granted the benefit of anticipatory bail by this Court Vide order dated 06.10.2021 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 12824 of 2021 (Shri Ambresh Vs. State of U.P. and another). For ready reference, the same is reproduced herein under: "Heard Shri Vijay Bahadur Maurya, learned counsel for the applicant as well as the learned AGA and perused the record. Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Shri Ambresh in Case Crime No. 180 of 2009, under Sections 197, 198, 218, 420, 467, 468, 471, 120-B I.P.C. and Section 13(2) and 13(1) Prevention of Corruption Act, Police Station - Kotwali, District - Mirzapur. It is submitted by learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. It is further submitted that matter relates to the year 2003-04. Applicant was simply an employee in the shop concerned. If entire prosecution case is taken into consideration