Allahabad High Court
Hemraj Singh vs State Of U.P. on 25 April, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4316 of 2023 Applicant :- Hemraj Singh Opposite Party :- State of U.P. Counsel for Applicant :- Krishna Dutt Tiwari Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. K.D. Tiwari, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for anticipatory bail has been filed by applicant-Hemraj Singh in connection with Case Crime No. 161 of 2018, under Sections 420, 467, 468, 471, 409, 120B/34, 406, 201 IPC and Section 13 Prevention of Corruption Act, Police Station-Mandi Dhanaura, District- Jyotiba Phoole Nagar (Amroha).
Record shows that an FIR dated 19.05.2018 was lodged by first informant-Hemraj Singh and was registered as Case Crime No. 161 of 2018, under Sections 420, 467, 468, 471 IPC, Police Station-Mandi Dhanaura, District- Jyotiba Phoole Nagar (Amroha). In the aforesaid FIR, 2 persons namely (1) Jitendra Singh Kaushal and (2) Girish Chandra Arya have been nominated as named accused.
The gravamen of the allegation made in the FIR is that named accused are guilty of committing embezzlement in respect of the scholarship funded by the State of U.P. After lodging of above-mentioned FIR, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During course of investigation, the complicity of present applicant also came to surface. Ultimately, Investigating Officer, on the basis of material collected by him, during course of investigation, came to the conclusion that complicity of not only named accused but certain other persons not named in the FIR is also established in the crime in question. Accordingly, he submitted the charge sheet dated 14.08.2022 whereby and whereunder following persons have been charge sheeted :-
(1). Mayank Agrawal, (2). Muzalim Hasan, (3). Naimul Hasan @ Sabbu, (4). Azimul Hasan @ Raju, (5). Chandrabhan Srivastava, (6). Harshvardhan Kandwal, (7). Aash Mohammad, (8). Ankit @ Chikit Tyagi, (9). Mahmood Ali, (10). Sanjog Agarwal @ Sanju Maisee @ Polo, (11). Hemraj Singh Applicant has been charge-sheeted under Section 420, 467, 468, 471, 409, 120B, 201 and 34 IPC and Section 13 Prevention of Corruption Act. It is apposite to mention here that the charge sheet has been submitted after the sanction as required under Section 19 of the P.C. Act was granted by the competent authority. The sanction order has not been challenged by the applicant till date.
Learned counsel for applicant submits that applicant is a retired Government Servant. At the relevant point of time, applicant was working as District Minority Welfare Officer and he superannuated from his services on 31.07.2018. As such, on date, applicant is approximately 65 years of age.
It is then contended that applicant is not named in the FIR. His complicity has came to surface in the statement of the witnesses examined under Section 161 Cr.P.C. As such, there is no credible and reliable evidence up to this stage against applicant for the alleged crime. He further submits that different named/not named accused approached this Court by means of following Anticipatory Bail Applications and their liberty was protected by this Court. The details of the same are as under:
(i). Criminal Misc. Bail Application No. 32466 of 2019 (Naimul Hasan and Another Vs. State of U.P. and Another).
(ii). Criminal Misc. Bail Application No. 33318 of 2019 (Mahmood Ali Vs. State of U.P. and Another).
(iii). Criminal Misc. Bail Application No. 34287 of 2019 (Ankit Kumar Vs. State of U.P. and Another).
(iv). Criminal Misc. Bail Application No. 57313 of 2019 (Chandrabhan Srivastava Vs. State of U.P.).
It needs to be noticed that aforesaid applications were disposed off finally vide different orders passed by this Court and protection was granted to the aforesaid applicant till the submission of the police report.
He has then invited the attention of this Court to the order dated 13.07.2020 passed in Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 4206 of 2020 (Mayank Agarwal Vs. State of U.P. and Another). For ready reference, the same is reproduced hereinunder:-
"Heard Sri Krishna Dutt Tiwari, learned counsel for the applicant, and Sri DPS Chawla, learned A.G.A. for the State and perused the record.
This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No. 161 of 2018 under section 13 of Prevention of Corruption Act, Police Station Mandi Dhanaura, District Amroha, during the pendency of the investigation.
Submission made by the learned counsel for the applicant is that the accused was earlier granted bail by the trial court under this crime number under sections 420, 467, 468, 471, 409, 120B, 201 and 34 IPC, copy of the bail order is annexed at page 18 to 24 of the paper book. It is argued that subsequently offence under section 13 of Prevention of Corruption Act has been added, thereafter the trial court has rejected the bail of the applicant by the impugned order. He states that the applicant should be granted bail for offence under section 13 of Prevention of Corruption Act as well. Further, it is argued that similarly placed accused namely Haimraj Singh and Chandrabhan Srivastava have been granted bail in the said added section, copies of the bail are annexed at pages 27 to 30 of the paper book. He has no criminal history. He has apprehension of imminent arrest. If released on bail he would not misuse the liberty and would co-operate with the investigation.
Learned A.G.A. has vehemently opposed the prayer for granting bail but could not controvert the aforesaid fact.
Taking into consideration the gravity of accusation, there being no criminal antecedents of the applicant and there being no possibility of his fleeing from justice, without expressing any opinion on the merits of the case, the applicant is entitled to be released on anticipatory bail in this case.
In the event of arrest of the applicant Mayank Agarwal involved in the aforesaid case shall be released on anticipatory bail till the submission of police report if any under section 173 (2) Cr.P.C. before the competent Court on his furnishing a personal bond of Rs. 50,000/- 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 officer 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 him/her/them 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 shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
The Investigating Officer is directed to conclude the investigation of the present case in accordance with law expeditiously preferably within a period of three months from the date of production of a copy of this order downloaded from the official website of Allahabad High Court and verified by the learned counsel for the applicant, independently without being prejudiced by any observation made by this Court while considering and deciding the present anticipatory bail application of the applicant.
The applicant is directed to produce a copy of this order downloaded from the official website of Allahabad High Court and verified by the learned counsel for the applicant before the S.S.P./S.P. concerned within ten days from today, who shall ensure the compliance of present order.
Order Date :- 13.7.2020"
Reference has also been made to the order dated 23.03.2023 passed by this Court in Application U/s 482 Cr.P.C. No. 586 of 2022 (Mayank Agarwal Vs. State of U.P. and Another) wherein this Court stayed the proceedings in Consequential Criminal Case in respect of one of the charge sheeted accused namely Mayank Agarwal. For ready reference, the same is extracted herein under:-
"Heard Sri Ranvijay Chaubey, learned counsel for the applicant/petitioner and learned Government Advocate for the State.
The present petition has been filed for quashing of the charge-sheet no. 243 of 2019 dated 24.09.2019 and the order of cognizance/summoning dated 26.09.2019 passed by the learned Chief Judicial Magistrate, Amroha and for setting aside the entire proceedings of Case no. 5806/2020 now Special Case No. 03/2020 (State vs. Mayank Agarwal) pending in the court of Prevention of Corruption-II, Bareilly under Sections 420, 467, 468, 471, 406, 409, 120-B, 120, 34 IPC, P.S. Mandi Dhanaura, District Amroha.
Learned counsel for the applicant/petitioner has submitted that the applicant is a Senior Clerk in District Social Welfare Office, Jyotiba Phule Nagar, Amroha. On 10.05.2018, an FIR has been lodged against two named accused persons relating to bungling in the distribution of Scholarship of the students and in the said FIR, the applicant was not named. The name of the applicant has been cropped up during investigation. It is further submitted that the Investigating Officer has asked for sanction of prosecution against the applicant which was not granted and this fact can be verified from the letter dated 03.02.2020, written by the Director, Backward Class Welfare, Lucknow enclosed at Page 48 of the paper book, addressed to the trial court wherein it has been specifically mentioned that the Directorate has not granted sanction to proceed with the investigation against the applicant by referring about the earlier communications which shows that the sanction was not granted and despite that the Investigating Officer proceeded with the investigation and has filed the charge-sheet on 24.09.2019 against the applicant also. In pursuance of the charge-sheet, the court below has taken cognizance vide its order dated 26.09.2019 in contravention of Section 197(1)(b) of the Cr.P.C. as prosecution has not been sanctioned and hence the order of cognizance and summoning order is bad in the eyes of law. In support of his submission, learned counsel for the applicant has relied upon the judgment of the Apex Court in the case of Indra Devi vs. State of Rajasthan & Ors. decided in Criminal Appeal No. 593 of 2021 arising out of SLP (Crl.) No. 1605 of 2018.
On the other hand, learned AGA has opposed the submissions raised by learned counsel for the applicant but unable to dispute the legal position as provided under Section 197 Cr.P.C. and the judgment of the Apex Court, relied by learned counsel for the applicant.
After hearing the learned counsel for the parties and going through the record and also the judgment of the Apex Court, discussed above, it is found that as per Section 197 Cr.P.C., that "no court shall take cognizance of such offence except with the previous sanction" and in the present case from the letter dated 03.02.2020 written by the Director, Backward Class Welfare, Lucknow to the trial court specifically mentioning therein that the sanction has not been granted.
Learned AGA prays for and is granted four weeks' time for filing counter affidavit.
List this case in the week commencing 25.04.2022.
Till the next date of listing, the proceedings of Case no. 5806/2020 now Special Case No. 03/2020 (State vs. Mayank Agarwal) pending in the court of Prevention of Corruption-II, Bareilly under Sections 420, 467, 468, 471, 406, 409, 120-B, 201, 34 IPC, P.S. Mandi Dhanaura, District Amroha, shall remain stayed, so far it relates to the present applicant.
Order Date :- 23.3.2022"
On the above premise, he submits that the case of present applicant is similar and identical to that of charge sheeted co-accused, Mayank Agarwal. He, therefore, submits that in view of the facts and reasons recorded in the order pertaining to co-accused Mayank Agarwal, liberty of applicant is also liable to be protected by this Court. The charge sheet has already been submitted against applicant. As such, the evidence sought to be relied upon by the prosecution against applicant stands crystallized. There is no such circumstance, which warrants custodial arrest of applicant during the course of trial. Applicant is an old man aged about 65 years and therefore, entitled to the benefit of proviso to Section 437 Cr.P.C. He, therefore, submits that interest of justice shall be served, in case, the benefit of anticipatory bail is extended in favour of applicant also. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. has opposed the present application for anticipatory bail. He submits that charge sheeted co-accused Mayank Agarwal is simply a computer operator. Admittedly, co-accused Mayank Agarwal was working under the applicant i.e. Hemraj Singh who was working as District Minority Welfare Officer at the relevant point of time. The criminality alleged to have been committed by co-accused Mayank Agarwal could not have been committed without the knowledge of the applicant himself. It is thus urged that since the case of present applicant is clearly distinguishable from that of co-accused Mayank Agarwal, therefore, applicant cannot claim any benefit from the orders passed in favour of charge sheeted co-accused Mayank Agarwal. Learned A.G.A. has then referred to the judgment of the Supreme Court in P. Chidambaram Vs. Directorate of Enforcement, AIR 2019 SC 4198 and on basis thereof, he submits that since there is no exceptional circumstance warranting interference by this Court in exercise of jurisdiction under Section 438 Cr.P.C., remedy of applicant is to approach court below and seeks regular bail. As such, present application for anticipatory bail is liable to be rejected.
When confronted with above, the learned counsel for applicant could not over come the same.
As a result, present application for anticipatory bail fails and is liable to be rejected.
It is accordingly rejected.
Order Date :- 25.4.2023 Vinay