Allahabad High Court
Dablu @ Prashant Ojha vs State Of U.P. Thru. Addl. Chief Secy. ... on 31 October, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12028 of 2022 Applicant :- Dablu @ Prashant Ojha Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. Counsel for Applicant :- Amol Kumar Srivastava,Shivanshu Mishra Counsel for Opposite Party :- G.A. Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, Sri Ajay Kumar Srivastava, learned A.G.A. for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant with a prayer to release the applicant on bail during the trial in Case Crime No.178 of 2000, under Sections 147, 353, 336, 171Cha, 176, 224, 398, 341 I.P.C. & Section 131, 135 (1) Representation of People Act, 1951 and 7 Criminal Law Amendment Act, P.S. Kotwali Dehat, District Balrampur.
It is contended by learned counsel for the applicant that the applicant is innocent and has falsely been implicated in the present case. He further submits that the instant F.I.R. has been lodged with false and frivolous allegations against the applicant including other co-accused persons. The applicant applied for bail and he was enlarged on bail, vide order dated 31.7.2000. After the applicant was enlarged on bail, he kept on appearing on each and every date either through his counsel or himself uptil 29.9.2018. On 29.9.2018, the case was transferred to learned Special Judge, MP/MLA, Prayagraj. He submits that the court below at Prayagraj, without issuing any summon, directly issued non-bailable warrant against the accused applicant. Thereafter, the case was transferred on 7.9.2020 from Prayagraj to Balrampur as per the notification of the High Court dated 16.8.2019.
He added that the applicant filed Application U/S 482 Cr.P.C. No. 4411 of 2021 for quashing the entire proceedings of Sessions Trial No.64 of 2021, which was disposed off on 10.11.2021 by this Court. Relevant part of the order dated 10.11.2021 reads as under:-
"Therefore, without interfering with the proceedings challenged under this petition, I hereby provide liberty to the petitioner to appear before the learned court below within seven working days from today and if the petitioner appears before the learned court below within the aforesaid stipulated time, the operation of the impugned summoning order as well as warrants, if any, shall be kept in abeyance, so far as it relates to the petitioner. However, it is made clear that if the petitioner does not appear before the learned court below within the aforesaid stipulated time, the benefit of this order shall not be provided to him and the learned court below would be at liberty to pass any coercive order against the petitioner, as per law."
He contended that while passing the aforesaid order, the Court had given liberty to the accused-applicant to appear before the court below within seven working days from the date of passing of the order and it was also provided that if the accused-applicant appears before the court below within stipulated period of time, the warrant or summoning order would be kept in abeyance. He submits that in compliance of the aforesaid order, the accused-applicant appeared on 15.11.2021 before the court below and after appearance of the accused-applicant, the trial court passed the order on the same day and warrant was also recalled. On 1.12.2021, while misinterpreting the order dated 10.11.2021, the trial proceedings was stayed. Thereafter, while again misinterpreting the order dated 10.11.2021, the concerned trial court revived the summoning order as well as warrants against the accused-applicant on 26.7.2022 considering the ratio of the Judgment passed in Asian Resurfacing of Road Agency Private Limited Vs. C.B.I., (2018) 16 SCC 299. Operative portion of the order dated 26.7.2022 reads as under:-
"It is true that the net effect of both the two aforementioned orders dated 10.11.2021 and 08.12.2021 passed by Hon'ble High Court had been that the proceedings of this case had remain stayed. It is also noteworthy that the petition filed by both the accused persons Indrapal Singh as well as Dablu @ Prashant Ojha in Hon'ble High Court U/S 482/378/407 CrPC had been disposed off by Hon'ble High Court. Therefore, there is no possibility that any new order will be passed by Hon'ble High Court in those petitions. In these circumstances, following dictum of order passed by Hon'ble Supreme Court in Asian Resurfacing of Road Agency Private Limited Vs. CBI (supra), proceedings against both the accused persons Dablu @ Prashant Ojha as well as Indrapal Singh is commenced treating the orders dated 10.11.2021 and 08.12.2021 passed by Hon'ble High Court to have ended now. Accordingly, summoning order passed as well as warrants issued against both these accused persons stands revived. Hence, NBW be issued against accused Dablu @ Prashant Ojha and Indrapal Singh with direction to the SHO Kotwali Dehat for their execution as per law. Fix for 04.08.2022 for further orders."
Being aggrieved, the accused-applicant challenged the order dated 26.7.2022 by instituting Application U/S 482 Cr.P.C. No.6940 of 2022 before this Court and this Court, after considering the matter in detail, passed the order on 29.9.2022. The operative portion of the order dated 29.9.2022 reads as under:-
"The whole controversy appears to have surfaced by misinterpretation of the order of the Coordinate Bench of this Court dated 10.11.2021 by the trial court vide its order dated 15.11.2021. The order dated 10.11.2021 passed in Application U/s 482 Cr.P.C. No.4411 of 2021 was loud and clear that the applicant was required to appear before the trial court within seven working days from the date of order and it was only for the seven working days, the operation of the summoning order as well as warrants were kept in abeyance so far as it relates to the instant applicant.
Thus perusal of the order dated 10.11.2021 passed in Application U/s 482 Cr.P.C. No.4411 of 2021 would reveal manifestly that there was no stay of proceedings of the trial court and the same has been wrongly interpreted by the trial court to be a stay of proceedings. Thus, in the considered opinion of this Court, applicant could not take any advantage of wrong committed by the trial court. In the considered opinion of this Court, as there was no ambiguity in the order of the Coordinate Bench dated 10.11.2021, it was the duty of the applicant also to have appeared before the trial court by moving a surrender application.
Now the question remains as to whether there was any impediment for the applicant to appear/surrender before the trial court. The answer to this question is in negative. The applicant was/is free to appear before the trial court in pursuance of coercive process (non bailable warrants) issued by the trial court, therefore, in the considered opinion of this Court, there is no requirement of any direction of this Court. The applicant in pursuance of the order of the trial court dated 26.07.2022 may appear/surrender before the designated court.
However, so far as the merits of the order dated 26.07.2022 is concerned, I do not find any illegality therein.
At this stage, learned counsel for the applicant submits that the applicant is ready to appear/surrender before the trial court tomorrow i.e. till 30.09.2022 and protection from arrest till tomorrow be granted to him.
Having regard to the submissions made by learned counsel for the applicant, the instant application is finally disposed of in terms that till tomorrow i.e. 30.09.2022, to facilitate the applicant to appear/surrender before the trial court, he shall not be arrested in the above mentioned case in view of the process issued by the trial court in pursuance of the order dated 26.07.2022.
It is clarified that beyond 30.09.2022, the applicant may not take any benefit of this order.
Observations made herein-above by this court are only for the purpose of disposal of this application and shall not be construed as an expression of this Court on the merits of the case.
Let a copy of this order be provided to learned counsel for the applicant on payment of usual charges today itself. "
Submission is that while passing the aforesaid order, the matter was thoroughly dealt with including the application of ratio of the Judgment and order passed in Asian Resurfacing of Road Agency Private Limited (supra). The learned Single Judge, while dealing with the aforesaid matter, has come to the conclusion that the aforesaid ratio will not apply in the instant matter and further the matter was disposed off by fixing a date to facilitate the applicant to appear/surrender before the trial court and the applicant was protected from his arrest. Thereafter, the trial court considered the aforesaid order and passed the order on 1.10.2022 wherein the bail application of the applicant was rejected on the grounds that the charges could not be framed against the accused-applicant after lapse of 22 years including other grounds.
The contention of learned counsel for the application is that the applicant kept on appearing on each and every date after he was enlarged on bail on 31.7.2000 and there is no lapse on his part so far as the issue of non-framing of charges are concerned. He next added that the matter was transferred twice, i.e., from Balrampur to Prayagraj and thereafter from Prayagraj to Balrampur during Covid-19 period and, as such, there may be certain irregularity in appearance before the trial court in these period but that too was not deliberate. He further submits that after his release on bail, there is no complaint either of tampering the evidence or threatening the witnesses. He further added that there is no chance of the applicant of absconding from the trial proceedings. He also added that the applicant is a respectable person of the society and he was never involved in committing the criminal activity.
He further added that there is no fault of the accused-applicant. Vide order dated 29.9.2022, the application was disposed off and the applicant was given liberty to appear before the court concerned till 30.9.2022 while protecting the arrest of the applicant. He added that once it has been decided that there is no application of Asian Resurfacing of Road Agency Private Limited (supra) in the instant matter then there was no occasion for the trial court to pass the order dated 1.10.2022 rejecting the bail application of the present applicant.
Per contra, learned A.G.A. appearing for the State has very vehemently opposed the contention aforesaid and submits that the applicant was enlarged on bail on 31.7.2000. He next submits that due to dilly dallying tactics of the applicant /accused, the charges could not be framed against the applicant though about 22 years have been passed. He further submits that present applicant is a politically influenced person and he by hook and crook avoided to appear before the trial court.
Adding his argument, he submits that the proceeding was stayed by the court below, vide order dated 1.12.2021 and this fact was very well in the knowledge of the applicant and, as such, he cannot disown his liability to put forth the actual fact before the court concerned and, thus, he tried to mislead the court and kept on enjoying the stay order and thus, knowingly and deliberately delayed the trial proceedings for a long period of time. He submits that the applicant, several time jumped the liberty of bail and could not appear before the trial court and, thus, the trial court, looking into the conduct of the applicant, has passed the order and rejected the application for bail of the present applicant. He submits that in aforesaid situations, the present applicant is not entitled to be released on bail.
Having heard learned counsel for the parties and learned A.G.A. for the State and material placed on record, it reveals that the applicant was sent on jail after an F.I.R. was lodged, vide Case Crime No.178 of 2000. Learned court below taking lenient view granted bail to the accused-applicant on 31.7.2020 and the applicant kept on appearing on each and every date either himself or through counsel before the court concerned uptil 29.9.2018. After some time, the matter was transferred to Prayagraj and thereafter to Balrampur and, in between, the non-bailable warrant was issued against the applicant. The fact remains that the applicant had challenged the sessions trial proceeding before this Court wherein the Court has granted liberty to the present applicant to appear before the court concerned with condition that if he appears within seven working days, he shall not be arrested. Learned trial court assuming the aforesaid order as stay of the trial proceedings passed an order on 1.12.2021 and since then it was kept on pending. Looking into the whole scenario, it does not seem that after 31.7.2000 uptil 29.9.2018, there is no dispute that the applicant ever deviated to co-operate in framing of charges while passing the order dated 1.10.2022, it was considered by the learned trial court that lapse of 22 years was done at the instance of the accused-applicant.
On 29.9.2022, this Court has also noticed while hearing on Application U/S 482 Cr.P.C. No.6940 of 2022 and has very categorically dealt with issue of application of Asian Resurfacing of Road Agency Private Limited (supra) and has given finding that the same is not applicable in instant matter and also held that the trial court has wrongly interpreted and passed the order staying the proceeding of trial. Once the order dated 29.9.2022 was passed that establishes that there is not fault or deviation or misuse of liberty of bail on the part of the present applicant. This Court has also considered the fact that there is no single whisper in the order dated 26.7.2022 regarding jumping of bail or threatening the witnesses or tampering the evidence by the accused-applicant.
This Court has further considered that the applicant is in jail since 30.9.2022. The charge sheet has been filed and there seems no possibility of conclusion of the trial proceedings in near future.
Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a fit case of bail.
Let the applicant Dablu @ Prashant Ojha involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two heavy sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-
(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;
(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;
(3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and (4) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation without any reasonable cause, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.
Order Date :- 31.10.2022 Ram Murti