Allahabad High Court
Ambreesh Gaur vs State Of U.P. And Another on 5 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:109471 Court No. - 64 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3293 of 2024 Applicant :- Ambreesh Gaur Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashutosh Gupta Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Ashutosh Gupta, the learned counsel for applicant and the learned A.G.A. for State, opposite party-1.
2. Perused the record.
3. Instant Anticipatory Bail Application has been filed by applicant-Ambreesh Gaur seeking anticipatory bail in Case Crime No. 65 of 2015 under Sections 218, 420, 467, 468, 471, 120B I.P.C. and Section 13 (1) d, 13 (2) of Prevention of Corruption Act 1988, Police Station- Jagdishpura, District Agra.
4. At the very outset, the learned counsel for applicant contends that co-accused Om Prakash Yadav has been granted the benefit of anticipatory bail vide order dated 20.05.2024 passed by this Court in Criminal Misc. Anticipatory Bail Application No.8991 of 2023. For ready reference the same is reproduced herein under:-
". List revised.
2. Heard Sri Sudhir Mehrotra, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A.-I appearing for the State and perused the record.
3. This anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicant Om Prakash Yadav, seeking anticipatory bail, in the event of arrest in Case Crime No. 65 of 2015, under Sections 218, 420, 467, 468, 471, 120B I.P.C., Section 13(1)(D), 13(2) Prevention of Corruption Act, Police Station- Jagdishpura, District- Agra till conclusion of trial of the present case before the trial court.
4. The applicant was granted interim anticipatory bail by this Court vide order dated 18.12.2023 which was extended on various dated till 05.4.2024. Subsequently on 3.5.2024 the same was not extended since there was no appearance on behalf of the applicant.
5. Learned counsel for the applicant submits that the applicant is not named in the F.I.R. It is submitted that implication of the applicant in the present matter is during investigation after which charge sheet was submitted against him and other accused persons. It is submitted that co-accused Satish Chand approached this Court by filing a Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 354 of 2023, which was rejected vide order dated 11.1.2023 passed by another Bench of this Court, copy of the said order is annexure no. S.A.-1(page no. 7) to the supplementary affidavit dated 21.4.2024. It is further submitted that against the said order the said accused preferred a Special Leave to Appeal (Crl.) No(s). 1273 of 2023 ( Satish Chand vs. State of Uttar Pradesh and another) in which vide order dated 27.1.2023 arrest of the petitioner was directed to be stayed by the Apex Court, copy of the order is annexed at page no. 8 to the said supplementary affidavit. The said order reads as under:-
"1. Heard learned counsel for the petitioner.
2. Issue notice, returnable within six weeks.
3. Meanwhile, arrest of the petitioner shall remain stayed subject to his joining and fully cooperating with the investigation."
6. It is submitted that subsequently even the other co-accused person Prabhu Narayan Singh preferred a Special Leave to Appeal (Crl.) No(s). 3724 of 2023 against the order dated 24.1.2023 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 795 of 2023 passed by this Court in which arrest was stayed by the Apex Court vide order dated 29.3.2023, copy of the said order is annexed at page no. 12 to the said supplementary affidavit. The said order reads as under:-
"1. Heard learned counsel for the petitioners.
2. Issue notice, returnable on 12.05.2023.
3.Liberty is granted to the petitioners to serve the Standing Counsel for the respondent ? State through dasti process.
4. Tag with SLP(Crl.) No.1273/2023.
5. Meanwhile, arrest of the petitioners shall remain stayed.
6. However, in the event of taking cognizance, the petitioners shall appear before the Trial Court."
7. It is further submitted that another co-accused Devendra Singh approached the Apex Court through Special Leave to Appeal (Crl.) No(s). 3203 of 2023 against the order dated 13.2.2023 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 11648 of 2022, in which his arrest was also stayed vide order dated 21.3.2023. The said matter had come up after filing of the charge sheet, copy of the same is annexed at page no. 14 of the said supplementary affidavit. The order passed therein reads as under:-
"1. Heard learned counsel for the petitioners.
2. Issue notice.
3. Liberty is granted to the petitioners to serve the respondent ? State through dasti process.
4. Tag with SLP(Crl.)No.1273 of 2023.
5. We have been informed that the investigation is complete and the chargesheet has been filed.
6. In this view of the matter, arrest of the petitioners shall remain stayed."
8. It is submitted that the said Special Leave Petitions were connected together and were finally decided on 12.5.2023 and the interim orders passed therein made absolute. The leading case is Special Leave to Appeal (Crl.) No(s). 1273 of 2023. Copy of the same is annexed at page nos. 15 to 17 of the said supplementary affidavit. The said order reads as under:-
"Special Leave to Appeal (Crl.) No.1273/2023:
1. Exemption Applications are allowed.
2. Having heard learned counsel appearing for the petitioner as well as learned Additional Advocate General appearing for Respondents ? State of U.P. at a considerable length and after carefully perusing the material available on record, including the counter affidavit filed by the State, the interim order dated 27012023 passed by this Court staying arrest of the petitioner is made absolute, subject to the condition that he shall continue to appear before the Trial Court on regular basis and any absence on his part shall be taken as a misuse of concession of bail.
3. The Special Leave Petition is, accordingly, disposed of.
SPECIAL LEAVE PETITION (CRL.) NO.3203/2023 SPECIAL LEAVE PETITION (CRL.) NO.3407/2023:
1. Exemption Applications are allowed.
2. Having heard learned counsel appearing for the petitioners as well as learned Additional Advocate General appearing for Respondents ? State at a considerable length and after carefully perusing the material available on record, including the counter affidavit filed by the State, the interim order dated 21.03.2023 passed by this Court staying arrest of the petitioners is made absolute, subject to the condition that they shall continue to appear before the Trial Court on regular basis and any absence on their part shall be taken as a misuse of the concession of bail.
3. The Special Leave Petitions are, accordingly, disposed of.
SPECIAL LEAVE PETITION (CRL.) NOS.3724/2023, 3218/2023 & 3227/2023:
1. Exemption Applications are allowed.
2. Having heard learned counsel appearing for the petitioners as well as learned Additional Advocate General appearing for Respondents ? U.P. at a considerable length and after carefully perusing the material available on record, including the counter affidavit filed by the State, the interim order dated 29.03.2023 passed by this Court staying arrest of the petitioners is made absolute, subject to the condition that they shall continue to appear before the Trial Court on regular basis and any absence on their part shall be taken as a misuse of the concession of bail.
3. The Special Leave Petitions are, accordingly, disposed of."
9. It is submitted that as such the applicant is also entitled to anticipatory bail.
10. Learned A.G.A. could not dispute the arguments as aforesaid.
11. After having heard learned counsels for the parties and perusing the records and the orders of the Apex Court, it is provided that in the event of arrest of the applicant Om Prakash Yadav, in the aforesaid case crime number, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) the applicant shall make himself available on each and every date fixed in the matter by the court concerned.
(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 from disclosing such facts to the Court.
(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 concerned court.
12. In case, the applicant does not co-operate in the proceedings of the trial, this order shall stand automatically recalled/vacated and the applicant shall be taken into custody, forthwith.
13. Further, in default of any of the conditions, the court concerned is at liberty to pass appropriate orders for enforcing and compelling the same.
14. The court concerned shall not be prejudiced by any observation made by this Court while considering and deciding the present anticipatory bail application of the applicant.
15. The present anticipatory bail application is disposed of.
16. Pending application(s), if any, shall stand disposed of.
(Samit Gopal,J.) Order Date :- 20.5.2024 "
5 Similarly another co-accused Mrs. Nayan Tara Banerjee has also been granted the benefit of anticipatory bail vide order dated 31.05.2024 passed by this Court in Criminal Misc. Anticipatory Bail Application No.5569 of 2024 (Mrs. Nayan Tara Banerjee Vs. State of U.P. and another. For ready reference the same is extracted herein under:-
"1. Heard learned counsel for the applicant, learned AGA for the State and perused the record.
2. The second anticipatory bail application has been filed by the applicant namely Mrs. Nayan Tara Banerjee invoking the powers of Section 438 Cr.P.C. stating therein that she reasonably apprehends her arrest by the police for having committed a non-bailable offence registered vide Case Crime No. 65 of 2015, under Sections 218, 420, 467, 468, 471, 120-B IPC and Section 13(1)d and Section 13(2) of the Prevention of Corruption Act, 1988, Police Station Jagdishpur, District Agra.
3. Learned counsel for the applicant has submitted that the applicant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.
4. Learned counsel for the applicant has next submitted that the applicant was not named in the First Information Report and the matter relates to the appointment of Bandi Rakshak in the year 2005-06, for which, a First Information Report was lodged on 11.02.2015 i.e. after 10 years of the actual incident.
5. Learned counsel for the applicant has next submitted that subsequently, on 27.01.2022, an order was passed by the Director General Jail, Uttar Pradesh granting sanction for prosecution against the applicant, after about 17 years of the said incident.
6. Learned counsel for the applicant has next submitted that during the course of investigation, the applicant was granted anticipatory bail by this Court vide order dated 06.04.2023 in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C.No. 3815 of 2023. Now the investigation has been completed and charge-sheet has been submitted against the applicant.
7. Learned counsel for the applicant has next submitted that similarly placed co-accused Devendra Singh was initially granted anticipatory bail by co-ordinate Bench of this Court in Criminal Misc. Anticipatory Bail Application U/s 438 CrPC No. 11648 of 2022 vide order dated 05.12.2022, however subsequently, the said anticipatory bail was rejected by Co-ordinate Bench of this Court vide order dated 13.02.2023 as well as Criminal Misc. Anticipatory Bail Application U/s 438 CrPC No. 354 of 2023 (Satish Chand Vs. State of U.P. and Another) vide order dated 11.01.2023.
8. Against the said orders dated 11.01.2023 and 13.02.2023, the applicants approached the Hon'ble Apex Court in Special Leave to Appeal (Criminal) Nos. 1273 of 2023 and 3203 of 2023 and in both the cases, arrest of the petitioners was initially stayed and subsequently after filing of the charge-sheet, the aforesaid Special Leave (Crl) No.1273 of 2023 filed by co-accused Satish Chand has been disposed of by the Hon'ble Apex Court vide order dated 12.05.2023 and the following order was passed:
2. Having heard learned counsel appearing for the petitioners as well as learned Additional Advocate General appearing for Respondents-State at a considerable length and after carefully perusing the material available on record, including the counter affidavit filed by the State, the interim order dated 21-03-2023 passed by this Court staying arrest of the petitioners is made absolute, subject to the condition that they shall continue to appear before the Trial Court on regular basis and any absence on their part shall be taken as a misuse of the concession of bail.
3. The Special Leave Petitions are, accordingly, disposed of.
9. Learned counsel for the applicant has next submitted that in view of the order dated 12.05.2023 passed by the Hon'ble Apex Court, the applicant is also entitled to be released on bail.
10. Per contra, learned AGA for the State has opposed the prayer for anticipatory bail of the applicant but could not dispute the aforesaid facts.
11. Having considered the rival submissions made by learned counsel for the parties and taking into consideration the aforesaid order dated 12.05.2023 passed by the Hon'ble Apex Court and the fact that the applicant was not named in the FIR, which was lodged after ten years of the actual incident and subsequently after lapse of 17 years, sanction for prosecution was granted by the Director General Jail, Uttar Pradesh and the applicant is lady aged about 63 years, as such, in the backdrop of the said circumstances, I am of the opinion that the applicant has made out a case for bail.
12. In view of the above, till the conclusion of trial, the applicant-Nayan Tara Banerjee, if arrested, shall be released on anticipatory bail in Case Crime No. 65 of 2015, under Sections 218, 420, 467, 468, 471, 120-B IPC and Section 13(1)d, 13(2) of Prevention of Corruption Act, 1988, Police Station Jagdishpura, District Agra on her furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned on the following conditions that :
(i) 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 her from disclosing such facts to the Court or to any police officer;
(ii) the applicant shall not leave India without the previous permission of the Court and if she has passport the same shall be deposited by him before the S.S.P./S.P. concerned.
(iii) the applicant shall continue to appear before the trial court on regular basis and any absence on her part shall be taken as a misuse of concession of bail.
13. In default of any of the conditions, the State of U.P. shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
14. With the aforesaid directions, the instant anticipatory bail application is finally disposed off.
Order Date :- 31.5.2024 "
6. On the above premise, the learned counsel for applicant contends that the case of present applicant is similar and identical to that of aforementioned co-accused, who have already been granted the benefit of anticipatory bail. He also contends that there is no such distinguishing feature on the basis of which the case of present applicant can be so distinguished from the aforesaid co-accused so as to deny him anticipatory bail. He further submits that the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. To buttress his submission he has referred to the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5). Even otherwise applicant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. On the above conspectus, it is thus urged that in case liberty of applicant is protected by extending the benefit of anticipatory bail, he shall not misuse the same and shall co-operate with the trial.
7. Per contra, the learned A.G.A. for State has vehemently opposed this application for anticipatory bail. He submits that since applicnt is a named and charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. The applicant was the Chairman of the Selection Committee and therefore, he is legally and morally responsible illegality/manipulation committed in the recruitment process for selecting intramural (Bandi Rakshak). As such, no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
8. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that even though the applicant is a named and charge sheeted accused, the court finds that co-accused have already been granted the benefit of anticipatory bail by this Court as well as by the Supreme Court, except for the fact that applicant is the Chairman of the Selection Committee, no such distinguishing feature has emerged distinguishing the case of present applicant from co-accused so as to deny him the liberty of anticipatory bail, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above the learned A.G.A. for State could not point out any such circumstance from the record necessitating the custodial arrest of applicant, the judgement of Apex Court in Sumit Subhashchandra Gangwal (supra), clean antecedent of the applicant, therefore irrespective of the objections raised by the learned A.G.A. in opposition to present application for anticipatory bail, but without making any comments on the merits of the case, liberty of applicant is liable to be protected.
9. Accordingly, this application for anticipatory bail is allowed.
10. In view of above, in the event of arrest, applicant- Ambreesh Gaur shall be released on anticipatory bail in Case Crime No. 65 of 2015 under Sections 218, 420, 467, 468, 471, 120B I.P.C. and Section 13 (1) d, 13 (2) of Prevention of Corruption Act 1988, Police Station- Jagdishpura, District Agra on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of concerned Court with the following conditions:-
(i) 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 her from disclosing such facts to the Court;
(ii) The applicant shall not leave India without the previous permission of the Court and if she has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.
(iii). In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
Order Date :- 5.7.2024 YK