Jharkhand High Court
Arvind Kumar Pandey vs Union Of India Through Cbi ... Opp. Party on 12 April, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 6700 of 2023
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Arvind Kumar Pandey, aged about 44 years, son of Sudhir Kumar Pandey, resident of Gramin Dak Sevak, Head Office, Giridih Division, Department of Post, P.O. Giridih, P.S. Giridih, District Giridih (Jharkhand) ... Petitioner Versus Union of India through CBI ... Opp. Party
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CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Ms. Puja Agarwal, Advocate Mr. Rishav Kumar, Advocate For the Opp. Party : Ms. Chandana Kumari, AC to ASGI
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Order No. 04/Dated 12 April, 2024
1. Apprehending arrest, the applicant herein seeks anticipatory bail the instant application filed under Sections 438 and 440 of the Code of Criminal Procedure, 1973 in connection with R.C. case no.02(A)/21(D) registered under Sections 120-B and 420 of Indian Penal Code (IPC) and under Sections 13(2) r/w 13(1)(a) of Prevention of Corruption Act, 1988 (in short Act, 1988). Facts
2. The facts and circumstances giving rise to filing of present application is that on the reliable source information has been received in the Office of SP, CBI, ACB, Dhanbad, alleging that the accused persons namely (1) Md. Altaf, the then APM Counter (SB), Giridih Head Post Office, (2) Shashi Bhushan Kumar, the then APM Counter (SB), 1 Giridih Head Post Office, (3) Arvind Kumar Pandey (petitioner) the then Gramin Dak Sewak BPM Khurjio BO A/c with Palonjila SO, Giridih Division, Giridih, (4) Sri Krishna Kumar Das, son of Late Raghunath Ram, the then Gramin Dak Sevak, Shirampur Colliery BO in A/c withGiridih Town SO, under Giridih Head Post Office, (5) Sri Trilochan Singh, resident of Station Road, Giridih (Private person), (6) Sri Navin Kumar, son of Sri Basant Pandit R/s Officers Colony, Giridih (private person) (7) Sri Ratan Kumar Pathak, resident of village Mangrodih, P.O. Danddih, Giridih (private persons) and unknown others have entered into criminal conspiracy amongst themselves and other unknown during the period 2016-2019 with an intention to commit the offences of cheating and criminal misconduct. In pursuance of the said criminal conspiracy, they dishonestly and fraudulently made credit entries of huge amounts on various dates during the period 2016- 2019 by using details of demand drafts / cheques (already used & paid by the Treasury of Giridih Head Post Office) into 03 dubious Savings Bank Accounts of Giridih Head Post Office and subsequently those amounts were fraudulently withdrawn in cash etc. on different dates. Thus, double payments against the same demand drafts / 2 cheques were made causing wrongful loss to the Postal Department of Giridih.
3. It is alleged that fraudulent deposits withdrawals were made in the three SB accounts opened at Giridih HO without any corresponding credit entries in the account of Giridih HO.
4. It is further alleged that said deposit accounts were credited in said three accounts through those demand drafts which are already used / charged by Treasury of Giridih HO for making payment to respective Sub-Offices where the demand draft were actually received in and meant for payment to actual beneficiaries. Thus, double payments against the same Demand Drafts were made and caused wrongful loss to the Postal Department of Giridih.
5. Subsequently, fraudulent withdrawals to the tune of Rs.88,63,781/- were made from the said three Savings accounts on different dates and thereby caused wrongful loss of Rs.88,63,781/- to Postal Department and corresponding wrongful gain to themselves.
6. The above allegation, prima facie, disclose commission of cognizable offences on the part of said accused public servants which are punishable under Sections 120B read with 420& 477A of the Indian Penal Code, Section 13(2) 3 read with Section 13(1)(a) of P.C. Act, 1988 (as amended by P.C. Act 2018).
7. Hence, a Regular Case was registered against (1) Md. Altaf, the then APM Counter (SB), Giridih Head Post Office, (2) Shashi Bhushan Kumar, the then APM Counter (SB), Giridih Head Post Office, (3) Arvind Kuma Pandey, son of Late Sudhir Kumar Pandey, the then Gramin Dak Sevak BPM Khurjio BO A/c with Palonjila SO, Giridih Division, Giridih, (4) Sri Krishna Kumar Das, son of Late Raghunath Ram, the then Gramin Dak Sevak, Shirampur Colliery BO in A/c with Giridih Town SO, under Giridih Head Post Office, (5) Sri Trilochan Singh, resident of Station Road, Giridih (Private person), (6) Sri Navin Kumar, son of Sri Basant Pandit R/s Officers Colony, Giridih (private person), (7) Sri Ratan Kumar Pathak, resident of village Mangrodih, P.O. Danddih, Giridih (private persons) and unknown others under Section 120B read with 420& 477A of the Indian Penal Code, Section 13(2) read with Section 13(1)(a) of P.C. Act, 1988 (as amended by P.C. Act 2018).
8. After investigation charge-sheet vide charge-sheet no. 05 of 2022 dated 19.12.2022 was submitted.
9. Apprehending his arrest, the applicant had moved for grant of anticipatory bail in Misc. Criminal Application No. 536 of 2023, however the same was rejected vide order 4 dated 16.05.2023 passed by the Court of Additional Sessions Judge-III-cum-Spl. Judge, C.B.I., Dhanbad. Hence, the present anticipatory bail application has been filed.
Submissions
10. Learned counsel for the applicant has contended that the applicant has been falsely implicated in the instant case. In this context, he submitted that the petitioner working as Gram Dak Sevak (GDS) in Clearing House of the Head Office during the period 2016-2018 where his work was of messenger and he was only supposed to collect the cheques from the bank and hand over to the competent officer at the Head Post Office and he has got nothing to do as GDS in this episode.
11. It is submitted that the cheque clearing work is a part of treasury and the postal assistant / treasurer (regular clerk) is only responsible for such act and the petitioner being a messenger, was nowhere involved in the work of clearing of cheque.
12. The learned counsel for the applicant has further contended that the entire prosecution case is based on the assumption that the petitioner has facilitated for clearing of cheques but it is not the case because the other co-accused was posted as Treasurer at Giridih H.O. at the relevant time 5 and he was solely in-charge and authorized to clear the cheques.
13. Further, the petitioner has never applied and allotted such ID and password as the departmental rules of GDS does not authorize for GDS work in CDS FINNACLE system at Giridih H.O.
14. It is further contended that the applicant was the then GDS and was engaged on a part time basis for a maximum 03 to 05 hours a day, as such, he never came under the ambit of public servant as defined in the statute and, as such, the implication of the applicant under prevention of corruption Act is totally misplaced and the entire prosecution case so far applicant is concerned is based upon false and frivolous grounds.
15. Further, learned counsel for the applicant, to buttress his argument, has relied upon the judgment as rendered by the Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. reported in (2022) 10 SCC 51 wherein the Hon'ble Apex Court has observed that the question of personal liberty is the paramount consideration being the fundamental right and even in a case of criminal nature, consideration is to be given before snatching the 6 personal liberty of the person concerned as granted under Article 21 of the constitution of India.
16. In view of the aforesaid contentions, learned counsel for the applicant, submitted that the case is made out for exercising the powers vested with the Court for granting pre-arrest bail and accordingly, the instant application may be allowed.
17. Per contra, learned counsel appearing for the Opposite Party-CBI, has vehemently opposed the prayer for anticipatory bail contending that the involvement of the applicant in the instant case is established and considering the seriousness of the offence and in the interest of the society at large, the instant application may not be allowed.
18. It is further submitted that the instant case is about dishonest and illegal withdrawal of Government money from alleged fake saving accounts of Giridih Town SO by using the details of already used demand drafts/cheques and the present applicant while working in clearing house made dishonest and fraudulent entries of details of already used demand drafts at Giridih Head Post Office by using his User ID in FINACLE as the role of maker/operator.
19. The aforesaid facts prima facie discloses commission of cognizable offences by the applicant which is punishable 7 under Section 13(2) read with 13(1)(a) of Prevention of Corruption Act, (as amended in 2018).
20. In the aforesaid premises, she submitted that the instant application having no any merit, deserves to be dismissed.
Analysis
21. This Court has carefully analysed the rival submissions advanced by learned counsel for the respective parties and perused the entire record.
22. Before adverting to the issue raised by the respective parties, let us consider the settled law with respect to granting and/or refusing the anticipatory bail.
23. It has been settled by Hon'ble Apex Court time and again in its various pronouncements that the powers under Section 438 Cr.P.C., is in extra-ordinary character and must be exercised sparingly in exceptional cases only and therefore, the anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been implicated in the crime, as grant of anticipatory bail to some extent, is interference in the sphere of investigation of an offence and hence, the court must be cautious while exercising such powers.
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24. It is also settled connotation of law that the grant or refusal of the application should necessarily depend on the facts and circumstance of each case and there is no hard and fast rule and no inflexible principles governing such exercise by the Court.
25. It is pertinent to mention here that the law on grant of anticipatory bail has been summed up by the Hon'ble Apex Court in Siddharam Satlinappa Mhetre vs. state of Maharashtra & Ors. reported in (2011)1 SCC 694 after due deliberation on the parameters as evolved by the Constitution Bench in Gurubaksh Singh Sibbia vs. State of Punjab reported in (1980) 2 SCC 565. The relevant paragraphs of the said judgment as rendered by the Hon'ble Apex Court is being quoted hereunder:-
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court or the Court of Session has to exercise their jurisdiction under Section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.9
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case.
The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the 10 prosecution, in the normal course of events, the accused is entitled to an order of bail.
114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualise all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of the entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the Judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the Court of Session or the High Court is always available."
26. In Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1 the Constitution Bench of the Hon'ble Apex Court has reiterated that while deciding application for anticipatory bail, Courts should be guided by factors like the nature and gravity of the offences and the role attributed to the applicant and the facts of the case.
27. The Hon'ble Supreme Court, in catena of decisions, has categorically held that the judicial discretion of the Court while considering the anticipatory bail shall be guided by various relevant factors and largely it will depend upon the facts and circumstances of each case. Reference 11 in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Central Bureau of Investigation Vs Santosh Krnani and Another reported in 2023 SCC OnLine SC 427. For ready reference the relevant paragraph of the aforesaid judgment is being quoted herein under:
"24. The time-tested principles are that no straitjacket formula can be applied for grant or refusal of anticipatory bail. The judicial discretion of the Court shall be guided by various relevant factors and largely it will depend upon the facts and circumstances of each case. The Court must draw a delicate balance between liberty of an individual as guaranteed under Article 21 of the Constitution and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences. Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the accused, it cannot jeopardise the investigation, more so when the allegations are grave in nature."
28. It is evident from the record that the allegation against the petitioner is also levelled under various provisions of the Act 1988, as such, at this juncture this Court thinks it fir and proper to discuss the object and purpose of the Act 1988.
29. Objects of Prevention of Corruption Act, 1988 is to make effective provisions for the prevention of bribery and 12 corruption rampant among the public servants. It is a social legislation intended to curb illegal activities of public servants and is designed to be liberally construed so as to address its object.
30. In State of M.P. v. Ram Singh, reported in (2000) 5 SCC 88, the Hon'ble Supreme Court held that the object of the Prevention of Corruption Act, 1988 was to make effective provisions for prevention of bribe and corruption amongst public servants. It has been further held that it is a social legislation to curb illegal activities of public servants and should be liberally construed so as to advance its object and not liberally in favour of the accused.
31. In the light of aforesaid principles and as per the object of the Act 1988, it may be inferred that it is the duty of the Court that any anti-corruption law has to be interpreted and worked out in such a fashion as to strengthen the fight against corruption. That is to say, in a situation where two constructions are eminently reasonable the Court has to accept the one that seeks to eradicate corruption to the one which seeks to perpetuate it. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex Court in the case of Subramanian Swamy Vs. Dr. Manmohan Singh reported in (2012) 3 SCC 64.
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32. In light of the aforesaid legal proposition and taking into consideration the rival submissions of the learned counsel for the parties, this court is now adverting to the facts of the present case to reach out the conclusion that the case of pre-arrest bail for the applicant is made out or not.
33. From perusal of the record, it is evident that the CBI, ACB Dhanbad registered a criminal case on 10.08.2021 under Sections 120 B read with Section 420 of IPC, Section 13(2) read with Section 13(1) (a) of P.C. Act, 1988 (as amended by P.C Act 2018) against Arvind Kumar Pandey (petitioner) and other accused persons.
34. Investigation revealed that the accused-petitioner Arvind Kumar Pandey the then Gramin Dak Sewak (GDS)/BPM Khurjio HO under Palaunjia Sub Post Office in Giridih Head Post Office served in Giridih Head Post Office on attachment during the period 2011-2019.
35. It has come on record that the accused-petitioner was entrusted with duty and responsibility of clearing of Demand Drafts & Cheques pertaining to Giridih H.O. from 2016 to 2019. His duty was to collect Demand Drafts/cheques from treasury of Giridih H.O. and hand over the same to SBI Main Branch, Giridih (clearing house bank) till the installation of Cheque Truncation system 14 (CTS) in Giridih Head Post Office in February 2019. He was the authorized representative of Giridih HO at SBI, Giridih Main Branch (designated bank for Giridih Head Post Office for clearing purpose).
36. It has further come on record that after installation and functioning of CTS in Giridih HO, his duty was to clear Demand Drafts/cheques in Core Banking Solution (CBS), Giridih Head Post Office by the way of scanning and uploading the same from March 2019 onwards.
37. Thus, it appears that he had the privilege to access the details of all Demand Drafts/cheques by virtue of his official position while working in clearing house, the present petitioner was also issued with user ID ARVINDPANDEY for the role of Counter PA/Enterer for entering/log in into Finacle Application Software in Core Banking Solution.
38. Thus, prima facie it appears that the involvement of the present petitioner in said fraudulent transactions cannot be brushed aside. It is evident that even though he was serving in the rank of GDS who were not eligible for handling the Finnacle system in Giridih Head Post Office, but he was having the User ID by circumventing the laid down guidelines.
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39. It further reveals that the petitioner while working in clearing house in Giridih HO, dishonestly and fraudulently, made entries in Finacle Application Software of Core Banking Solution (CBS) of Giridih Head Post Office, Giridih in 52 instances by using details of demand drafts/cheques (already used and paid by the Giridih Head Post Office) through his user ID ARVINDPANDEY assigned for the role of Enterer/Counter PA resulting in fraudulent debit from the Govt. account No.815301000125 of the Post Master, Head Post Office Giridih and corresponding credit into the accounts of 02 accused private persons to the tune of Rs 24,55,628/-.
40. It has come on record that the petitioner also misused user ID and password of other officials of Giridih HO for making and verifying entry in Finacle System of CBS in Giridih HO for aforesaid fraudulent transactions from government account through the account of 03 private persons causing wrongful loss to the tune of Rs 88,56,438/- which was subsequently withdrawn by accused private persons.
41. It is pertinent to refer here that the CBI, Dhanbad branch has filed charge-sheet against Arvind Kumar Pandey in R.C. Case No. 10(A)/2019 and is also investigating another case vide R.C. 01(A)/2022 registered 16 against him for acquisition of Disproportionate Assets by him which corroborates the circumstances of illegal misappropriation of Govt. money on his part. In the connection of the aforesaid cases the present applicant had preferred Anticipatory Bail Application being A.B.A No.6126 of 2023 and 6966 of 2023 which was dismissed by this Court vide order dated 12.01.2024.
42. Thus, the aforesaid facts prima facie discloses commission of cognizable offence punishable u/s 120-B r/w 420 of IPC and section 13(2) r/w 13(1)(a) of Prevention of Corruption Act 1988 (As Amended by P.C. Act 2018) by the present petitioner/accused Arvind Kumar Pandey, then Gramin Dak Sevak.
43. The foremost argument as emphasised by the learned counsel for applicant that the post of the applicant doesn't come under the purview of public servant, hence the charges under the Act 1988 cannot be imposed upon the applicant.
44. In the aforesaid context it appears from the record that the job profile of Gramin Dak Sevak (GDS) includes overall management of postal facilities, maintenance of records and payment bank services in branch post offices. It includes all functions of Mail Carriers and Mat Deliverers, door-step delivery/payments under IPPB in 17 Branch Post Office/SO/HO. His duty and responsibility involves managing affairs of GDS Post Offices and, as such, GDS in his capacity perform as the public work.
45. Further the public duty as stipulated under section 2(b) of the Act 1988 means a duty in the discharge of which the State, the public or the community at large has an interest.
46. The Hon'ble Apex Court in State of Gujarat v. Mansukhbhai Kanjibhai Shah, reported in 2020 (2) RCR (Criminal) 544, has observed that evidently, the language of Section 2(b) of the Act 1988, indicates that any duty discharged wherein State, the public or community at large has any interest is called a public duty.
47. Further as per the definition of Public Servant as stipulated in section 2(c) sub-clause (viii) of Act 1988, it appears that any person who holds an office by virtue of which he is authorised or required to perform any public duty, will come under the ambit of public servant.
48. In State of Maharashtra & Anr. v. Prabhakar Rao & Anr., reported in (2002) 7 SCC 636, the Hon'ble Supreme Court held that the definition of 'Public Servant' U/s 21 of IPC is of no relevance under the Prevention of Corruption Act, 1988.
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49. In Manish Trivedi v. State of Rajasthan, reported in (2014) 14 SCC 420, the Hon'ble Apex Court has held that a member of the Municipal Board or a Municipal Councilor per se may not come within the definition of public servant as defined U/s 21 of IPC but this does not mean that they cannot be brought in the category of public servant by any other enactment.
50. In the aforesaid circumstances, the nature of work as performed by the applicant, the present applicant comes under the purview of the Act 1988, therefore, the contention of the learned counsel for the applicant in this context does not appear to be correct.
51. Further the learned counsel has put reliance upon the judgment as rendered by the hon'ble Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. (Supra) and raised the question of snatching away the personal liberty of the accused person but it is the considered view of this Court that grant or refusal of the application should necessarily depend on the facts and circumstance of each case and there is no hard and fast rule and no inflexible principles governing such exercise by the Court. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex 19 Court in the case of Central Bureau of Investigation Vs Santosh Krnani and Another (Supra).
52. Thus, this Court by referring to the materials placed on record by the CBI is of the considered view that prima facie, the allegations against the present applicant cannot be brushed aside lightly and also there appears to be a well-organised syndicate comprising various officials of the postal Department who are in tandem and, as such, this type of nexus needs to be unearthed.
53. In the facts of present case, it is useful to refer to and rely on the case of Niranjan Hem Chandra Sashittal Vs. State of Maharashtra, (2013) 4 SCC 642 wherein the Hon'ble Supreme Court observed that corruption is not to be judged by degree, for corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. The Apex Court further observed that immoral acquisition of wealth destroys the energy of the people believing in honesty and history records with agony how they have suffered; and the only redeeming fact is that collective sensibility respects such suffering as it is in 20 consonance with constitutional morality. The emphasis was on intolerance to any kind of corruption bereft of its degree.
54. Further in Subramanian Swamy Vs. C.B.I reported in (2014) 8 SCC 682, the Constitutional Bench of the Supreme Court observed that corruption is an enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the 1988 Act.
55. The Hon'ble Apex Court in the case of Central Bureau of Investigation Vs Santosh Krnani and Another (Supra) has observed that corruption poses a serious threat to our society and must be dealt with iron hands. the relevant paragraph of the aforesaid judgment is being quoted herein under:-
"31. The nature and gravity of the alleged offence should have been kept in mind by the High Court. Corruption poses a serious threat to our society and must be dealt with iron hands. It not only leads to abysmal loss to the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is aptly said, "Corruption is a tree whose branches are of an unmeasurable length; they spread everywhere; and the dew that drops from thence, Hath infected some chairs and stools of authority." Hence, the need to be extra conscious."
Conclusion
56. For the foregoing reasons, having regard to facts and circumstances, as have been analysed hereinabove, the 21 applicant failed to make out a special case for exercise of power to grant pre-arrest bail and considering the facts and parameters, necessary to be considered for adjudication of anticipatory bail, without commenting on the merits of the case, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 438 of the Code of Criminal Procedure to grant anticipatory bail. Therefore, this Court is of the view that the anticipatory bail application is liable to be rejected.
57. In the result, the instant application is hereby rejected.
58. It is made clear that the observations/findings, as recorded hereinabove, is only for the purpose of issue of consideration of pre-arrest bail. The same will not prejudice the issue on merit in course of trial.
(Sujit Narayan Prasad, J.) Alankar/ N.A.F.R. 22