Court No. - 78
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9389 of 2021 Applicant :- Smt. Manju Singh And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamlesh Kumar Yadav,Ajay Srivastava Counsel for Opposite Party :- G.A.,Mohammad Waseem
Hon'ble Samit Gopal,J.
Heard Sri Kamlesh Kumar Yadav and Sri Ajay Srivastava, learned counsel for the applicants, Sri U.P. Singh, learned A.G.A. appearing for the State and perused the record.
This anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicants, seeking anticipatory bail, in the event of arrest in Case Crime No. 653 of 2020, under Sections 419, 420, 467, 468, 471, 120-B I.P.C., Police Station- Saidpur, District - Ghazipur.
At the very outset, learned counsel for the applicant states that the applicant no. 2 - Raghvendra has been arrested and as such, the present application under Section 438 Cr.P.C. may be dismissed as not pressed in so far as he is related.
The same is not disputed by learned counsel for the first informant.
As prayed, the present application under Section 438 Cr.P.C. in so far as the applicant no. 2 is concerned is dismissed as not pressed.
Learned counsel for the applicant argued that the applicant no. 1 is a lady. It is argued that although process under Section 82 Cr.P.C. has been issued against the applicants and also order of attachment has been issued but looking to the nature of the matter, the applicant no. 1 - Smt. Manju Singh may be granted anticipatory bail. It is argued that the dispute is of civil nature. The applicants are the tenure holders of Arazi No. 64 from which sale deed was executed and the first informant is also a co-sharer of the said Arazi and the name of the applicant no. 1 was recorded in the revenue records along with the name of applicant no. 2, after death of father of the applicant no. 1 as she was one of the legal heirs of the deceased. It is argued that the sale deed was executed of the shares of the applicants and not of any other land. It is argued that the applicant has no criminal history as stated in paragraph 24 of the affidavit.
Per contra, learned counsel for the first informant has reiterated his argument as done on 1.12.2021 that since non bailable warrant has been issued and even attachment order has been passed, the present application is not maintainable. It is further argued that the applicant no. 1 is named in the first information report and there is allegation against her.
On 1.12.2021 following order was passed :
"Heard Sri Ajay Singh, Advocate holding brief of Sri Kamlesh Kumar Yadav, learned counsel for the applicants, Sri Mohammad Waseem, learned counsel for the opposite party no. 2 and Sri Raj Kumar Gupta, learned Brief Holder for the State.
Learned counsel for the first informant states that he has filed counter affidavit in the office on 11.10.2021. The same is not on record.
Office is directed to trace out the same and place it on record by the next date.
Learned counsel for the applicant states that he does not intend to file rejoinder affidavit to the counter affidavit of the first informant.
Learned counsel for the opposite party no. 2 states that process under Section 82 Cr.P.C. has been issued against the applicants and even attachment order has been issued. The same was brought to the notice of the Court on 09.11.2021 which is recorded in the order of the said date.
Learned counsel for the applicant did not dispute the fact that process under Section 82 Cr.P.C. and order for attachment have been issued against the applicants.
Learned counsel for the first informant argued that looking to the dictum of Apex Court given in Criminal Appeal No. 1209 of 2021, Prem Shankar Prasad Vs. State of Bihar,vide judgement dated 21 October, 2021, the present anticipatory bail application as of now is not maintainable as it has been held in unequivocal terms that application under Section 438 Cr.P.C. will not be maintainable for a person who is an absconder or proclaimed absconder in terms of Section 82 Cr.P.C.
Let the matter be listed in the week commencing 20.12.2021."
Looking to the matter and the uncontroverted statement of the learned counsel for the opposite party no. 2 on 01.12.2021 and as per the dictum of the Hon'ble Apex Court in the case of Prem Shankar Prasad (Supra), the present anticipatory bail application is rejected.
Order Date :- 20.12.2021 nd (Samit Gopal, J.)