Jharkhand High Court
Sushil Kumar Saxena vs The State Of Jharkhand ... Opposite ... on 11 February, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M.P. No. 92 of 2022
Sushil Kumar Saxena ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
Coram: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
For the Petitioner : Mr. Indrajit Sinha , Adv.
Mr. Nisith Kr. Sahani, Adv.
For the State : Mr. Veervijay Pradhan, Addl. P.P.
02 / 11.02.2022Heard the parties through Video Conferencing.
Learned counsel for the petitioner submits that this criminal miscellaneous petition has been filed under section 482 Cr.P.C by the petitioner with a prayer for modification of the order dated 02.12.2021 passed in ABA No. 8904 of 2021 by reducing the amount to be deposited by the petitioner suitably by adjusting the amount of 23,94,251/- recoverable from Deoghar Municipal Corporation, Deoghar.
It is submitted by the learned counsel for the petitioner that vide order dated 02.12.2021 passed in ABA No. 8904 of 2021, the petitioner was given the privilege of anticipatory bail upon his undertaking in this court at the time of hearing of the anticipatory bail application, to pay Rs. 25,00,000/- to the informant without prejudice to his defence, subject to final decision in the case. It is next submitted that the amount of Rs. 23,94,251/- of a farm with which both the petitioner and the informant are associated, is lying due with Deoghar Municipal Corporation, Deoghar for which a writ petition has been preferred by the firm vide W.P. (C) No. 1271 of 2021 which has been disposed of vide order dated 21.12.2021 and the said amount is likely to be recovered within a short period. It is next submitted that the petitioner undertook at the time of hearing of ABA No. 8904 of 2021 to pay Rs. 25,00,000/- to the informant but due to present financial condition of the petitioner, he is unable to pay the said amount, hence, it is submitted that the amount of Rs. 23,94,251/- which is recoverable from Deoghar Municipal Corporation, Deoghar by the firm be adjusted. It is further submitted that the said order dated 02.12.2021 passed by this Court in ABA No. 8904 of 2021 is not in accordance with law and in this respect, learned counsel for the petitioner relies upon the order of Hon'ble Supreme Court of India in the case of the Manoj Kumar Sood & Anr. Vs. State of Jharkhand in SLP (Crl.) No(s). 1274 of 2021, hence, it is submitted that the order dated 02.12.2021 passed in ABA No. 8904 of 2021 be modified.
Learned Addl.PP on the other hand, vehemently opposes the prayer for modification of the order passed by this court in ABA No. 8904 of 2021 and submits that the same lawyer, who is appearing in this case, had undertaken on behalf of the petitioner at the time of hearing of ABA No. 8904 of 2021 to pay Rs. 25,00,000/- to the informant and consequent upon that only, the privilege of anticipatory bail was given to the petitioner but the petitioner after getting breather from arrest in shape of anticipatory bail order, is going back from his own undertaking made before this court and after obtaining the said anticipatory bail wisdom has dawned upon the petitioner and his counsel, that the order passed by this court upon their undertaking was not in accordance with law and he is questioning the legality of the said order before this court itself even though there is no scope of review of the said orderand such prayer is not maintainable in law as the same amounts to reviewing of the earlier order passed by this Court in ABA No. 8904 of 2021. It is further submitted by the learned Addl. PP that the period of eight weeks, within which, the petitioner had to surrender before the trial court has already elapsed, yet the petitioner has not surrendered before the trial court and he has succeeded in avoiding his arrest so far and is not cooperating with the investigation of the case. It is then submitted that there is no illegality in the said order passed by this court inABA No. 8904 of 2021 as the same is a consent order and the petitioner is trying to mislead this court as the facts of the case ofManoj Kumar Sood & Anr. Vs. State of Jharkhand (supra) are entirely different from the facts of this case as there was no consent or undertaking given by the petitioner before the court concerned at the time of hearing of the concerned petition to deposit money which is the undisputed fact in the present case. It is further submitted thatthis court being a constitutional court has ample power to do justice more so with the consent of the parties and impropriety has been, committed by the petitioner by submitting before this court itself that it's order is not in accordance with law with the dishonest intention to avoid complying his undertaking and of late such conduct of the parties are becoming a novel method to avoid arrest by the police in respect of serious offences by hook or crook, hence, it is submitted that this petition being without any merit, be dismissed.
Considering the facts of the case and the submissions made at the Bar and after , going through the materials in the record, it is pertinent to mention here that the order dated 02.12.2021 passed by this Court in ABA No. 8904 of 2021 was passed only after the petitioner's undertaking voluntarily to pay Rs. 25,00,000/- to the informant without prejudice to his defence. It is pertinent to mention here that when an accused volunteers to deposit an amount before the High Court as a condition of anticipatory bail he is not permitted to blow hot and cold and take the benefit of the impugned order of anticipatory bail and yet say that he will not deposit the same as has been observed by the Hon'ble Supreme Court of India in Special Leave to Appeal (crl.) No.7065/2021, UPENDRA NATH MANDALVERSUS CENTRAL BUREAU OF INVESTIGATION, Dated 23-09-2021. Similarly a three-judge bench of the Hon'ble Supreme Court in the case of Vidya Bhusan @Manish Kumar Versus State of Jharkhand (Special Leave to Appeal (Criminal) 3574/2020 dated 19.08.2020) has inter alia passed the following order:
"Having heard the learned counsel appearing for the petitioner and perusing the materials available on record, we see no reason to interfere with the impugned order passed by the High Court granting anticipatory bail to the petitioner, subject to the condition to deposit a demand draft of ₹15,00,000/-(Rupees fifteen lakhs only) in favour of his wife, as it was a consent order."
In view of this principle of law this court do not find any merit and the submission of the petitioner that the order passed by this court in ABA No. 8904 of 2021 is not in accordance with law.
Now coming to the facts of the case as the petitioner is not willing to act upon his undertaking given before this Court, this Court is of the considered view that this is not a fit case where the order dated 02.12.2021 passed by this Court in ABA No. 8904 of 2021 be modified, hence, this petition being without any merit, is dismissed.
This criminal miscellaneous petition is disposed of accordingly.
(ANIL KUMAR CHOUDHARY, J.) AFR-Smita/-