Allahabad High Court
Ankit Kumar Srivastava @ Nishu ... vs State Of U.P. Thru. Prin. Secy. Home And ... on 17 March, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 672 of 2023 Applicant :- Ankit Kumar Srivastava @ Nishu Srivastava Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Others Counsel for Applicant :- Suresh Chandra Srivastava,Anshuman Sharma,Athar Ali,Chandra Prakash Srivastava,Shantanu Sharma,Tripuresh Narayan Pandey,Vijay Vikram Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard ShriSuresh Chandra Srivastava, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
This second anticipatory bail application has been moved by the accused/applicant - Ankit Kumar Srivastava @ Nishu Srivastava in Case Crime No.81 of 2022, under Sections 419, 420, 406, 506, 467, 468, 471 I.P.C., Police Station Milaria, District Raebareli, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.
Learned counsel for the applicant submits that it is a case of false implication and by moving an application under Section 156(3) Cr.P.C. after consulting a legal professional a false case has been carved out against the applicant while no offence as stated in the F.I.R. has been committed by the applicant.
It is further submitted that earlier the applicant had approached this Court by filing Criminal Misc. Anticipatory Bail Application U/s 438 No.1847 of 2022, however, vide order dated 14.11.2022 the same was dismissed. It is also submitted that after rejection of first anticipatory bail application, the applicant had approached Division Bench of this Court by filing Criminal Misc. Writ Petition No.1517 of 2023, but the same was also dismissed providing liberty to the applicant to approach appropriate court under Section 438 Cr.P.C.
Various submissions have been raised by learned counsel for the applicant in order to demonstrate that the instant is a case of false implication and all the allegations levelled against the applicant is false, fabricated and could not be believed and also that the applicant is a respected citizen of the locality and is not having any criminal history. There is no apprehension that after being released on anticipatory bail the applicant may flee from the course of law or may otherwise misuse the liberty and it is in this background, it is submitted that protection from arrest be granted to the applicant. It is also submitted that material change in the facts and circumstances has occurred since rejection of first anticipatory bail application of the applicant to the tune that the charge sheet at that point of time was not filed against the co-accused Chand.
Learned A.G.A. on the other hand submits that the applicant is an accused of committing an heinous offence moreover there is not material change since rejection of his first anticipatory bail application. It is also submitted that proceedings of Section 82 Cr.P.C. has also been issued against the applicant vide order dated 22.02.2023 by the trial court concerned and therefore applicant is absconder and having regard to the law laid down by Hon'ble Supreme Court in Prem Shankar Prasad Vs. State of Bihar and another : 2021 SCC Online SC 955 and in Vipan Kumar Dhir Vs. State of Punjab and others; MANU/SC/0781/2021, the instant anticipatory bail application is not maintainable.
Having heard learned counsel for the parties and having perused the record, it is evident that the allegations of defrauding the informant and other 11 persons have been levelled in the F.I.R., which has been lodged under the orders of a Magistrate passed in the proceedings initiated under Section 156(3). The first anticipatory bail application of the applicant has been rejected on merits vide order dated 14.11.2022. Since rejection of the first anticipatory bail application of the applicant, process of 82 Cr.P.C. has been issued precisely on 22.02.2023. In other words the applicant has been declared as absconder.
Keeping in view of the law laid down by Hon'ble Supreme Court in Prem Shankar Prasad (supra) and Vipan Kumar Dhir Vs. State of Punjab and others and without entering into the merits and demerits of the case, the instant anticipatory bail application moved by the applicant - Ankit Kumar Srivastava @ Nishu Srivastava is hereby rejected on the score of maintainability.
However, mere rejection of the instant anticipatory bail application would not preclude the applicant to move regular bail application before appropriate court and if such an application is moved within a reasonable time, the court concerned shall be under an obligation to dispose of the same with utmost expedition after providing an opportunity of being heard to the parties strictly in accordance with law.
Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this Court on the merits of the case.
Order Date :- 17.3.2023 Anupam S/-