High Court
Case Details
Neutral Citation No. - 2024:AHC:115635 Court No. - 64 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6751 of 2024 Applicant :- Kaushal Kumar Ojha Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- P.K. Upadhyay,Vikram Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Vikram Yadav, the learned counsel for applicant and the learned A.G.A. for State. This application for anticipatory bail has been filed by applicant Kaushal Kumar Ojha in connection with Case Crime No.57 B of 2006, under Sections 409, 420, 467, 468, 471, 477-A, 120-B/34 IPC and Section 13 (2) Prevention of Corruption Act, Police Station Revati, District Ballia, during the pendency of trial. Perused the record. Record shows that in respect of an incident which is alleged to have occurred in between the years 2002 to April, 2005, a delayed first information report dated 09.05.2006 was lodged by first informant, namely, Uday Pratap Singh, Inspector, Economic Offences Wing, C.B.C.I.D. (Crime Investigation Department), Varanasi Division, Varanasi and was registered as Case Crime No.57 B of 2006, under Sections 409, 419, 420, 467, 468, 471, 201, 218, 120-B/34 IPC, Police Station Revati, District Ballia. In the aforesaid FIR, as many as 130 persons have been nominated as named accused. After aforementioned first information report was lodged, Investigation Officer proceeded with statutory investigation of concerned case crime number under Chapter XII CrPC. Applicant fully co-operated with the investigation. Consequently, no application was filed by Investigating Officer before court below praying for issuance of non-bailable warrant or coercive process under Section 82 CrPC against applicant. Ultimately, upon completion of investigation Investigating Officer submitted police report dated 05.12.2019 in terms of Section 173 (2) CrPC (charge-sheet). After submission of aforementioned police report, cognizance was taken upon same by court below and simultaneously applicant was summoned by court below vide cognizance taking/summoning order dated 10.11.2023. Learned counsel for applicant contends that though applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. Applicant is innocent. He has been falsely implicated in aforementioned case crime number. Even otherwise, applicant is now a retired government servant aged about 63 years. By reasons of above, applicant is entitled to the benefit of the provisions contained in proviso to Section 437 CrPC. Furthermore, once the police report in terms of Section 173 (2) CrPC has been submitted against the applicant therefore, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. However, irrespective of above, upto this stage, no such circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of trial. In short, the submission is that custodial arrest of applicant is not absolutely necessary for conducting the trial. To buttress his submission, he has relied upon the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra 2023 Live Law (SC) 373 (paragraph 5). Applicant is a man of clean antecedents having no criminal history to his credit except the present one. In case applicant is enlarged on anticipatory bail then in that eventuality it cannot be said that applicant shall either terrorize the witnesses or shall hamper the course of trial. On the above premise, it is then contended by the learned counsel for applicant that in case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. It is thus urged that applicant is liable to be extended the benefit of anticipatory bail till the pendency of trial. Per contra, the learned A.G.A. has opposed the prayer for anticipatory bail. He submits that since applicant is a named and charge-sheeted accused therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, nature and gravity of offence, acquisitions made, coupled with the fact that though applicant is a named and charge-sheeted accused yet the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, applicant is a retired government servant aged about 63 years, therefore by reason of above applicant is entitled to the benefit of the provisions contained inj proviso to Section 437 CrPC, the clean antecedents of the applicant, first information report giving rise to the present application for anticipatory bail was lodged on 09.05.2006 in respect of occurrences which are alleged to have occurred in between the years 2002 to April, 2005, the delayed prosecution of applicant, the submissions urged by the learned counsel for applicant as noted above, 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 applicant has made out a case. Notice on behalf of opposite party 1 has been accepted by the learned A.G.A. He prays for and is granted four weeks time to file counter affidavit. Applicant will have one week thereafter to file rejoinder affidavit. List for order on 27.08.2024. In view of above, in the event of arrest, applicant-Kaushal Kumar Ojha shall be released on ad-interim anticipatory bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court with the following conditions:- (i) The applicant shall appear before court below regularly on the date fixed; (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 from disclosing such facts to the Court or to any police officer; (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. In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of ad-interim anticipatory bail granted to the applicant. Order Date :- 19.7.2024. Rks.