Om Prakash Mishra v. State Of U.P. Thru. Addl. Chief Secy. Home Lko

Heard Sri Jayant Pratap Singh, learned counsel for the applicant, Sri Nikhil Singh, learned AGA-I and Sri Mayankar Singh, Advocate has filed 'Vakalatnama' along with counter affidavit, same is taken on record.

The present applicant is apprehending his arrest in Case Crime No.0071 of 2021 u/s 376D & 328 IPC, P.S. P.G.I., District Lucknow. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story so narrated in the FIR.

At the very outset attention has been drawn towards the Annexure no. 20 which is an order dated 29.10.2021 passed by the Division Bench in Misc. Bench No. 25124 of 2021 granted interim protection to the applicant and others.

Pursuant to the aforesaid order the present applicant cooperated in the investigation and with his cooperation charge-sheet has been filed. Thereafter the aforesaid petition has been dismissed on 2.2.2023. Further, challenging the summoning order and charge-sheet the present applicant filed an application u/s 482 Cr.P.C. (Annexure no. 21) being Application u/s 482 Cr.P.C. No. 10074 of 2024 which was disposed of by this Court giving liberty to the present applicant to file anticipatory bail application before the competent court within 30 days and granted protection till the aforesaid period of 30 days that he shall not be arrested. In compliance of the aforesaid order the present applicant filed anticipatory bail application before the sessions court which was rejected. Thereafter, he approached this Court by filing anticipatory bail application.

Learned counsel has stated that there is no material or evidence with the prosecution to show prima-facie that the present applicant has committed offence of 376D or 328 IPC. He has further submitted that since he cooperated in the investigation, therefore, after filing of the charge-sheet he could not be arrested in view of dictum of Apex court in re: Aman Preet Singh vs. C.B.I. through Director, Criminal Appeal No.929 of 2021.

The present applicant is a contractual employee at S.G.P.G.I. and is having his permanent address, therefore, there is no flight risk. The applicant has no prior criminal history of any kind whatsoever, therefore, his liberty may be protected as the applicant is apprehensive that if he appears before the learned trial court he would be taken into custody.

Learned AGA as well as Sri Mayankar Singh have opposed the aforesaid request of learned counsel for the applicant by submitting that in the F.I.R. as well as in the statement of the victim and other independent witnesses the allegations have been levelled against the present applicant. Instead of filing the anticipatory bail application the present applicant should appear before the learned trial court and may take all pleas and grounds which are available to him including the pleas of benefit of dictum of Apex Court in re Aman Preet Singh (supra).

Having heard learned counsel for the parties and having perused the material available on record it is clear that the present applicant was granted interim protection by the Division Bench of this Court, thereafter the protection of 30 days to file anticipatory bail application and there is no complaint or report that the present applicant has not cooperated in the investigation. Therefore, it would be presumed that the present applicant has cooperated in the investigation and with his cooperation the charge-sheet has been filed.

In view of the dictum of Apex Court in re: Aman Preet Singh (supra) if any accused person is not arrested during the investigation and charge-sheet is filed, he should not be arrested in a mechanical manner unless the Court concerned has got any cogent reason to that effect.

In the present case I do not find any reason as to why he would be arrested since he is a contractual employee of S.G.P.G.I. and is having his permanent address. Besides, has given his undertaking that he shall cooperate in the proceedings and shall not avoid those proceedings.

Therefore, prima facie it appears that the present applicant has got no reasonable apprehension of his arrest in view of dictum of Aman Preet Singh (supra). So without entering into the merits of the issue, I hereby dispose of this petition finally at the admission stage giving liberty to the present applicant to appear / surrender before the learned trial court taking all pleas and grounds which are available to him including the legal plea of Aman Preet Singh (supra) within a period of three weeks and if he appears before the court concerned and files appropriate application of bail etc. the same may be considered and disposed of with expedition preferably on the same day without giving any unnecessary adjournment to any of the parties.