Birendra Kumar Choubey Alias Birendra ... vs The State Of Jharkhand on 29 June, 2017

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Jharkhand High Court

Birendra Kumar Choubey Alias Birendra ... vs The State Of Jharkhand on 29 June, 2017

Bench: Anant Bijay Singh

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             A.B.A. No. 3290 of 2017

Birendra Kumar Choubey @ Birendra Kumar Choubey
                                          ...... Petitioner
                      Versus
The State of Jharkhand                    ...... Opposite Party
                     ---------
CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
                     ---------
For the Petitioner          :  Mr. Indrajit Sinha, Advocate
For the State               :  A.P.P.
                     ---------
03/Dated: 29/06/2017
     Heard learned counsel for the petitioner and learned counsel
for the State.
     The petitioner is apprehending his arrest in connection with
the case registered under Sections 406, 420 of the Indian Penal
Code.
     The prosecution case is that the written report of the
Executive Engineer, Rural Development is the basis of the case. This
accused petitioner happens to be a contractor. Admittedly, he
entered   into   an   agreement      after   tender   with       the   Rural
Development,     Department     of     Jharkhand      for    a     sum    of
Rs.1,30,014,000/- for construction of high level bridge over Nandani
River on Bandra-Kairo Road. It is also admitted that payment was to
be made on the basis of turn key basis. The work was alloted after
sanction of the amount. Admittedly it was agreed that construction
work was to be completed between the parties 15.06.2007 to
14.06.2008

but the work could not be completed after several reminders. The firm of the Contractor was black listed and the agreement was rescinded. The security money of Rs. 8,61,175/- was also forfeited by the rural development. It is stated that under the scheme for construction of bridge two abutments, four pier up to cap level out of which two piers titled. It is alleged that the piers titled due to bad construction and poor quality and not accordance with the design agreed in the agreement. It is alleged that due to poor construction quality and misappropriation of the fund, piers titled, this case was lodged.

Learned counsel for the petitioner has submitted that earlier the petitioner has moved the anticipatory which was rejected by this Court in A.B.A. No. 915 of 2017 vide order dated 02.05.2017 and thereafter second anticipatory bail has been filed.

Learned counsel for the petitioner has relied the judgment in the case of Kalayan Chandra Sarkar Vrs. Rajesh Ranjan @ Pappu Yadav reported in AIR 2005 SC 921 wherein Hon'ble Supreme Court has held which is reads as follows:-

C. Criminal Procedure Code, 1973-Ss. 437, 439, 300 and Chs.29 (Ss. 372 to 394) and 30(Ss. 395 to 405)-Successive bail applications-When maintainable-Material Change in fact or law-Findings of higher court or coordinate Bench-Binding effect of-Resjudicata-Applicability-Held, though principles of res judicata and principles analogous thereto are not applicable in criminal proceedings, still the courts are bound by doctrine of judicial discipline, having regard to the hierarchical system prevaling in the country-Findings of a higher court or coordinate Bench must receive serious consideration at hands of court entertaining a bail application at a later stage when same had been rejected earlier-Due weight to be given to grounds which weighed with former or Learned counsel for the petitioner has submitted that agreement has been said to be executed in the year 2007 and the case has been lodged on 05.11.2015 i.e. after a lapse of eight years. It is also submitted that petitioner is aged 69 years and this fact was not raised in the previous anticipatory bail application. It is also submitted that after investigation police has submitted final form.

Learned A.P.P has opposed the prayer for anticipatory bail. In the fact and circumstances of the case, the above named petitioner is directed to deposit Rs. 15,000/- within four weeks before the President/Chairman Advocate's Association Lohardaga Civil Court and President/Chairman Advocate's Associal Lohardaga Civil Court is directed to accept the aforesaid deposition and give receipt to the petitioner, and thereafter the petitioner is directed to produce the receipt of the aforesaid deposition before the trial Court and to surrender within one week from the date of this order and in the event of his arrest or surrender the Court below shall enlarge the above named petitioner on bail on furnishing bail bond of Rs. 15,000/- (Rupees fifteen thousand) with two sureties of the like amount each to the satisfaction of Additional Chief Judicial Magistrate, Lohardaga in connection with Bhandra P.S. Case No. 76 of 2015 corresponding to G.R. No. 691 of 2015, subject to the conditions as laid down under Section 438(2) of the Cr.P.C.

(Anant Bijay Singh, J.) Satayendra/

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