Lakshay Jaiswal v. State

2. Heard Sri Prakash Chand Srivastava, learned counsel for the applicant and Sri Manish Kumar, learned counsel for the first Informant as well as Sri Ashutosh Srivastava, learned A.G.A. for the State as well as perused the record.

3. The present anticipatory bail application has been filed on behalf of the applicant in F.I.R./Case Crime No. 197 of 2024, under Sections 420, 381, 411, 413, 120-B of IPC and Sections 66-B & 66-C of Information Technology Act, Police Station- Kasna, District- Gautambudh Nagar, with a prayer to enlarge him on anticipatory bail. PROSECUTION STORY:

4. As per the prosecution story, the applicant is said to be the Senior Production Manager in the Company of the informant and had caused loss of Rs.1,20,78,926/- to the Company in collusion with other co-accused persons. ARGUMENTS ON BEHALF OF APPLICANT: Learned counsel for the applicant has stated that the applicant has 5. been falsely implicated in the present case. He has nothing to do with the said offence. The FIR is delayed by about two months from the date of the resignation of the applicant from the Company. It is also stated that he is a bonafide person and has not misused the opportunity granted to him. Learned counsel has further stated that the co-accused person 6. Shubham Kumar Singh, who is stated to be the Driver in the Company, has already been granted anticipatory bail by the coordinate Bench of this Court passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 9873 of 2024 vide order dated 21.10.2024. Another co- accused person Rajiv Kumar Singh, who is stated to be the Helper in the Company, has also been granted anticipatory bail by the Trial Court passed in Anticipatory Bail Application No. 5264 of 2024 vide order 2 dated 24.01.2025. It is further submitted that since the case of the applicant is at par to the co-accused, who have already been anticipatory bail, he is also entitled to be granted anticipatory bail on the ground of parity. Learned counsel has also stated that this is the second anticipatory 7. bail application of the applicant as the first one i.e. Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 11637 of 2024 was dismissed as withdrawn vide order dated 16.12.2024 with a liberty to file a fresh application. Subsequently, the applicant had filed petition u/s 482 Cr.P.C. No.43864 of 2024 before this Court which was also disposed of vide order dated 20.12.2024 and the operative paragraph no.7 reads as under:- “7. For a period of three weeks from today or till appearance of the applicant before the court below, whichever is earlier, no coercive action shall be taken against the applicant in the aforesaid case.”

8. The applicant had filed another Anticipatory Bail Application No. 5108 of 2024 before the court concerned which was rejected vide order dated 24.01.2025.

9. Learned counsel has further stated that he has not misused the opportunity granted to him earlier on. No case u/s 413 IPC is made out against the applicant as there is no recovery of any material whatsoever from him. The investigation is still going on and he is ready to cooperate during trial.

10. It is also argued that the proceedings of Sections 82 & 83 Cr.P.C. have been taken up against the applicant in haste. Non-bailable warrant was also issued against him at the behest of the informant, who brands clout in the locality. Learned counsel has placed much reliance upon the judgement of 11. Delhi High Court passed in CRL.M.C. 3952/2024, CRL.MA. 15075/2024 & CRL.M.A. 15076/2024, Lakshay Jaiswal Vs. State (NCT of Delhi) & Another on 18.07.2024 and the relevant paragraph nos. 21 & 31 of the judgement as referred by learned counsel for the applicant read as under:- “21. The Hon’ble Supreme Court by way of its authoritative pronouncement in Inder Mohan Goswami (supra) has held that issuance of non-bailable warrants should be resorted to only when summons or bailable warrants would be unlikely to yield desired result. The Apex Court also observed that issuance of non-bailable warrants involves interference with personal liberty. Arrest of a person means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuance of non-bailable warrants. The Hon’ble Apex Court while dealing with the question as to when non-bailable warrants should be issued, laid down 3 following guidelines in respect thereof: When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.

54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non- bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant. (emphasis supplied) … …

31. The observation made by the Hon’ble Supreme Court in Srikant Upadhyay (supra) were made in the context of the facts of that case where the accused persons had failed to appear for approximately 7 months before the Trial Court despite giving them several opportunities and repeated summons/bailable warrants. Without going into the aspect whether the law laid down in Srikant Upadhyay (supra) is applicable to the fact situation of this case, it needs to be observed that if the legal position is that the accused person is not entitled to invoke the extraordinary power of the Court to grant anticipatory bail after the issuance of non-bailable warrants or proclamation, it is all the more reason for the learned Magistrate to be cautious while issuing non-bailable warrants or resorting to the provisions of proclamation and attachment. The right of an accused to seek anticipatory bail under Section 438 CrPC is a statutory right which enables him to protect his personal liberty as guaranteed to him under the Constitution of India. Such a right cannot be 4 set at naught by the investigating officer by procuring non-bailable warrants against an accused immediately within few days after the registration of a criminal case when the investigation is at a nascent stage and the accused hardly had sufficient time to seek professional advice and apply for pre-arrest bail. Even the facts of Srikant Upadhyay (supra) suggest that in the said case as well, the Court had first issued summons to the accused, then bail warrants were issued and only as last resort the court issued non-bailable warrants and that too after more than a year of taking cognizance of the offences.” Learned counsel has also stated that it is opined in the aforesaid 12. judgement that even after the proclamation u/s 83 Cr.P.C., the delinquent can be admitted to the anticipatory bail. Learned counsel has further stated that the applicant had filed an 13. application before the Trial Court for removal of Sections 411 & 413 IPC which was also rejected vide order dated 07.02.2025.

14. Learned counsel has next contended that the applicant has no criminal history. In case, his anticipatory bail application is allowed, he shall not misuse it and shall cooperate in trial as well. ARGUMENTS ON BEHALF OF INFORMANT & STATE: Per contra, learned counsel for the first Informant as well as learned 15. AGA have vehemently opposed the prayer for anticipatory bail on the ground that the applicant is not entitled for anticipatory bail as already the proceedings u/s 82 & 83 Cr.P.C. were already complete against him. Even at the time of earlier anticipatory bail application which was dismissed as withdrawn on 16.12.2024, the proceeding of Section 82 Cr.P.C. was already executed against the applicant. Learned counsel for the informant has placed much reliance upon 16. the judgement of Supreme Court passed in Lavesh vs. State (NCT of Delhi) reported in (2012) 8 SCC 730 and has stated that the said judgement is applicable to the instant case of the applicant.

17. The applicant has also invoked the provision of Section 482 Cr.P.C. and failed in it. Learned counsel has placed much reliance upon the judgement of this Court passed in Shivam Vs. State of U.P. and Another, reported in AIROnline 2021 All 484, wherein it has been categorically stated that if after investigation, charge-sheet has been filed and the accused has agitated the provision of Section 482 Cr.P.C. and failed, he is not entitled for anticipatory bail. Conclusion:

18. The instant anticipatory bail application is just a misuse of process of law as already the proceeding u/s 83 Cr.P.C. was executed against the 5 applicant on 10.02.2025 and he has applied for anticipatory bail before this Court on 22.02.2025 after a duration of 12 days of the said proclamation. The applicant has also misused his clout as without any provision, he has moved an application through his advocate before the Trial Court for removal of Sections 411 & 413 of IPC without being on bail or anticipatory bail and not being present in court either. It is further evident from the fact that after the resignation of the 19. applicant from the Company, he moved surrender application before the Trial Court with an ulterior motive. This Court has also been informed that the final report (charge-sheet) has already been submitted on 15.02.2025.

20. The case of the applicant is at a different footing to the case of co- accused persons, namely, Shubham Kumar Singh and Rajiv Kumar Singh, who are working as Driver and Helper in the Company. Although, the applicant is the office bearer of the Company.

21. Considering the facts and circumstances of the case, the arguments advanced by the learned counsel for the parties and the judgements referred hereinabove and also taking into consideration the fact that the proclamation u/s 83 Cr.P.C. was complete against the applicant and he is dilly dallying with the court’s order dated 20.12.2024 passed in the petition u/s 482 Cr.P.C. No.43864 of 2024, I do not find it a fit case to grant anticipatory bail to the applicant. In view of the above, the present anticipatory bail application is

22. rejected. Order Date:- 12.3.2025 Siddhant (Justice Krishan Pahal) SIDDHANT SAHU High Court of Judicature at Allahabad

2. Heard Sri Prakash Chand Srivastava, learned counsel for the applicant and Sri Manish Kumar, learned counsel for the first Informant as well as Sri Ashutosh Srivastava, learned A.G.A. for the State as well as perused the record.

3. The present anticipatory bail application has been filed on behalf of the applicant in F.I.R./Case Crime No. 197 of 2024, under Sections 420, 381, 411, 413, 120-B of IPC and Sections 66-B & 66-C of Information Technology Act, Police Station- Kasna, District- Gautambudh Nagar, with a prayer to enlarge him on anticipatory bail. PROSECUTION STORY:

4. As per the prosecution story, the applicant is said to be the Senior Production Manager in the Company of the informant and had caused loss of Rs.1,20,78,926/- to the Company in collusion with other co-accused persons. ARGUMENTS ON BEHALF OF APPLICANT: Learned counsel for the applicant has stated that the applicant has 5. been falsely implicated in the present case. He has nothing to do with the said offence. The FIR is delayed by about two months from the date of the resignation of the applicant from the Company. It is also stated that he is a bonafide person and has not misused the opportunity granted to him. Learned counsel has further stated that the co-accused person 6. Shubham Kumar Singh, who is stated to be the Driver in the Company, has already been granted anticipatory bail by the coordinate Bench of this Court passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 9873 of 2024 vide order dated 21.10.2024. Another co- accused person Rajiv Kumar Singh, who is stated to be the Helper in the Company, has also been granted anticipatory bail by the Trial Court passed in Anticipatory Bail Application No. 5264 of 2024 vide order 2 dated 24.01.2025. It is further submitted that since the case of the applicant is at par to the co-accused, who have already been anticipatory bail, he is also entitled to be granted anticipatory bail on the ground of parity. Learned counsel has also stated that this is the second anticipatory 7. bail application of the applicant as the first one i.e. Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 11637 of 2024 was dismissed as withdrawn vide order dated 16.12.2024 with a liberty to file a fresh application. Subsequently, the applicant had filed petition u/s 482 Cr.P.C. No.43864 of 2024 before this Court which was also disposed of vide order dated 20.12.2024 and the operative paragraph no.7 reads as under:- “7. For a period of three weeks from today or till appearance of the applicant before the court below, whichever is earlier, no coercive action shall be taken against the applicant in the aforesaid case.”

8. The applicant had filed another Anticipatory Bail Application No. 5108 of 2024 before the court concerned which was rejected vide order dated 24.01.2025.

9. Learned counsel has further stated that he has not misused the opportunity granted to him earlier on. No case u/s 413 IPC is made out against the applicant as there is no recovery of any material whatsoever from him. The investigation is still going on and he is ready to cooperate during trial.

10. It is also argued that the proceedings of Sections 82 & 83 Cr.P.C. have been taken up against the applicant in haste. Non-bailable warrant was also issued against him at the behest of the informant, who brands clout in the locality. Learned counsel has placed much reliance upon the judgement of 11. Delhi High Court passed in CRL.M.C. 3952/2024, CRL.MA. 15075/2024 & CRL.M.A. 15076/2024, Lakshay Jaiswal Vs. State (NCT of Delhi) & Another on 18.07.2024 and the relevant paragraph nos. 21 & 31 of the judgement as referred by learned counsel for the applicant read as under:- “21. The Hon’ble Supreme Court by way of its authoritative pronouncement in Inder Mohan Goswami (supra) has held that issuance of non-bailable warrants should be resorted to only when summons or bailable warrants would be unlikely to yield desired result. The Apex Court also observed that issuance of non-bailable warrants involves interference with personal liberty. Arrest of a person means deprivation of the most precious right of an individual. Therefore, the courts have to be extremely careful before issuance of non-bailable warrants. The Hon’ble Apex Court while dealing with the question as to when non-bailable warrants should be issued, laid down 3 following guidelines in respect thereof: When non-bailable warrants should be issued

53. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately.

54. As far as possible, if the court is of the opinion that a summon will suffice in getting the appearance of the accused in the court, the summon or the bailable warrants should be preferred. The warrants either bailable or non- bailable should never be issued without proper scrutiny of facts and complete application of mind, due to the extremely serious consequences and ramifications which ensue on issuance of warrants. The court must very carefully examine whether the criminal complaint or FIR has not been filed with an oblique motive.

55. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court's proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and second instance to refrain from issuing non-bailable warrants.

56. The power being discretionary must be exercised judiciously with extreme care and caution. The court should properly balance both personal liberty and societal interest before issuing warrants. There cannot be any straitjacket formula for issuance of warrants but as a general rule, unless an accused is charged with the commission of an offence of a heinous crime and it is feared that he is likely to tamper or destroy the evidence or is likely to evade the process of law, issuance of non-bailable warrants should be avoided.

57. The court should try to maintain proper balance between individual liberty and the interest of the public and the State while issuing non-bailable warrant. (emphasis supplied) … …

31. The observation made by the Hon’ble Supreme Court in Srikant Upadhyay (supra) were made in the context of the facts of that case where the accused persons had failed to appear for approximately 7 months before the Trial Court despite giving them several opportunities and repeated summons/bailable warrants. Without going into the aspect whether the law laid down in Srikant Upadhyay (supra) is applicable to the fact situation of this case, it needs to be observed that if the legal position is that the accused person is not entitled to invoke the extraordinary power of the Court to grant anticipatory bail after the issuance of non-bailable warrants or proclamation, it is all the more reason for the learned Magistrate to be cautious while issuing non-bailable warrants or resorting to the provisions of proclamation and attachment. The right of an accused to seek anticipatory bail under Section 438 CrPC is a statutory right which enables him to protect his personal liberty as guaranteed to him under the Constitution of India. Such a right cannot be 4 set at naught by the investigating officer by procuring non-bailable warrants against an accused immediately within few days after the registration of a criminal case when the investigation is at a nascent stage and the accused hardly had sufficient time to seek professional advice and apply for pre-arrest bail. Even the facts of Srikant Upadhyay (supra) suggest that in the said case as well, the Court had first issued summons to the accused, then bail warrants were issued and only as last resort the court issued non-bailable warrants and that too after more than a year of taking cognizance of the offences.” Learned counsel has also stated that it is opined in the aforesaid 12. judgement that even after the proclamation u/s 83 Cr.P.C., the delinquent can be admitted to the anticipatory bail. Learned counsel has further stated that the applicant had filed an 13. application before the Trial Court for removal of Sections 411 & 413 IPC which was also rejected vide order dated 07.02.2025.

14. Learned counsel has next contended that the applicant has no criminal history. In case, his anticipatory bail application is allowed, he shall not misuse it and shall cooperate in trial as well. ARGUMENTS ON BEHALF OF INFORMANT & STATE: Per contra, learned counsel for the first Informant as well as learned 15. AGA have vehemently opposed the prayer for anticipatory bail on the ground that the applicant is not entitled for anticipatory bail as already the proceedings u/s 82 & 83 Cr.P.C. were already complete against him. Even at the time of earlier anticipatory bail application which was dismissed as withdrawn on 16.12.2024, the proceeding of Section 82 Cr.P.C. was already executed against the applicant. Learned counsel for the informant has placed much reliance upon 16. the judgement of Supreme Court passed in Lavesh vs. State (NCT of Delhi) reported in (2012) 8 SCC 730 and has stated that the said judgement is applicable to the instant case of the applicant.

17. The applicant has also invoked the provision of Section 482 Cr.P.C. and failed in it. Learned counsel has placed much reliance upon the judgement of this Court passed in Shivam Vs. State of U.P. and Another, reported in AIROnline 2021 All 484, wherein it has been categorically stated that if after investigation, charge-sheet has been filed and the accused has agitated the provision of Section 482 Cr.P.C. and failed, he is not entitled for anticipatory bail. Conclusion:

18. The instant anticipatory bail application is just a misuse of process of law as already the proceeding u/s 83 Cr.P.C. was executed against the 5 applicant on 10.02.2025 and he has applied for anticipatory bail before this Court on 22.02.2025 after a duration of 12 days of the said proclamation. The applicant has also misused his clout as without any provision, he has moved an application through his advocate before the Trial Court for removal of Sections 411 & 413 of IPC without being on bail or anticipatory bail and not being present in court either. It is further evident from the fact that after the resignation of the 19. applicant from the Company, he moved surrender application before the Trial Court with an ulterior motive. This Court has also been informed that the final report (charge-sheet) has already been submitted on 15.02.2025.

20. The case of the applicant is at a different footing to the case of co- accused persons, namely, Shubham Kumar Singh and Rajiv Kumar Singh, who are working as Driver and Helper in the Company. Although, the applicant is the office bearer of the Company.

21. Considering the facts and circumstances of the case, the arguments advanced by the learned counsel for the parties and the judgements referred hereinabove and also taking into consideration the fact that the proclamation u/s 83 Cr.P.C. was complete against the applicant and he is dilly dallying with the court’s order dated 20.12.2024 passed in the petition u/s 482 Cr.P.C. No.43864 of 2024, I do not find it a fit case to grant anticipatory bail to the applicant. In view of the above, the present anticipatory bail application is

22. rejected. Order Date:- 12.3.2025 Siddhant (Justice Krishan Pahal) SIDDHANT SAHU High Court of Judicature at Allahabad