Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Ram Das Dwivedi in Criminal Case No. 182 of 2018, arising out of Case Crime No.215 of 2005, under Sections 420, 467, 468, 471, 409, 120-B IPC and 13(2) Prevention of Corruption Act, Police Station - Firozabad (Dakshin) District - Firozabad.
Heard Shri Hari Bans Singh, learned counsel for the applicant as well as the learned AGA and perused the material available on record.
It is submitted by the learned counsel appearing for the applicant that the applicant is innocent and has no concern with the present matter. Allegations levelled against the applicant are false. It is further submitted that though applicant had earlier approached this Court through application u/s 482 No. 36633 of 2013, which was rejected by the order dated 22.1.2021 directing the applicant to surrender before the trial court within three weeks from the date of the said order yet the applicant has every constitutional right to approach this Court directly for anticipatory bail. At this juncture, learned counsel for the applicant referred to law laid down by the Apex Court in Sushila Aggrawal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 and in Criminal Misc. Anticipatory Bail Application u/s 438 CrPC No. 2609 of 2020 (Parvez Ahmad vs. State of U.P.), decided on 22.5.2020 by another Bench of this Court. It is further submitted that order passed on the said application u/s 482 CrPC will not create any bar to entertain the present application. It is further submitted that no prima facie case is made out against the applicant. Concerned official of the department concerned were left out. They were not made accused. Applicant having no concern with the present matter has been made accused. Cognizance taken on the charge is illegal and without application of judicial mind. At present bailable warrant is continuing against the applicant. The applicant has apprehension of his arrest by the police any time. In support of his submissions, learned counsel has referred to the documents annexed with the application and submitted that the applicant be enlarged on anticipatory bail treating his case as a special case.
Learned A.G.A. opposing the prayer submitted that charge sheet has been submitted in the matter and cognizance has also been taken thereon. It is not a special case. Applicant has approached this Court directly. Application u/s 482 CrPC moved by the applicant has been rejected on merits finding a prima facie case against him. Applicant has not complied with the directions given in the said order passed in the said application under Section 482 CrPC. At this juncture, learned AGA referred to annexure-12 to the affidavit filed in support of the present application.
I have considered the rival submissions made by the learned counsel for the applicant and perused the entire record carefully.
Before dealing with the submissions made by the learned counsel for the parties, I find it necessary to quote the order dated 22.1.2021 passed in the application under Section 482 CrPC moved by the applicant, which is as under:
"Heard Shri Hari Bans Singh, learned counsel for the applicants and Shri Vikas Goswami, learned Additional Government Advocate (''A.G.A.') appearing for the State.
By the instant petitions filed under Section 482 of the Code of Criminal Procedure, 19731 (''Cr.P.C.') applicants seek quashing of the entire proceedings of S.S.T. No. 34 of 2010 (State vs. Shiv Kumar Chandal and others) under Sections 467, 468, 471, 420, 409, 120B IPC, and 13(2) of Prevention of Corruption Act, 1988, pending in the court of Special Judge/Sessions Judge, Firozabad.
All the applications, herein, are being heard together on consent. The applicants are chargesheeted in the same case crime number. For the sake of convenience the facts arising in Ratan Kumar Saraswat2 (36633/2013) is being referred to.
This Court had granted protection to the applicants from coercive measures. It is informed by the learned counsel for the applicants that the trial since then has not proceeded.
The facts, briefly stated, is that applicants were employees in the office of Soil Conservation Firozabad. The first applicant retired from the post of Accountant, on 31 December 2005. NABARD launched a time bound scheme in 1997-98 for improvement of the denuded and banjar (infertile) soil. A meeting of the District Soil and Water Conservation Committee was held on 25 September 1997, under the Chairmanship of the District Magistrate, Firozabad, wherein, it was decided that tractor and machinery shall be utilized for completing the work of the Scheme in a time bound programme. Accordingly, in compliance of the order issued by the State Government earth work and other related work was carried out on behalf of the Soil Conversation Officer.
It is urged that entire work was done on the directions passed by the higher authorities and the work of the Scheme was executed as per the norms of the Government. It appears that some complaint came to be filed with regard to lapses in the execution of the work and loss caused to the Government. On the complaint, it is urged that Technical Audit Cell conducted an enquiry headed by Additional Director of Agriculture (Soil Conservation). Upon considering the report, Director, Agriculture U.P. informed the State Government that the work was done as per norms and no loss of any kind was caused to the Government. It, however, appears that on the complaint, Secretary of the Department, vide communication dated 14 July 1998, directed the Deputy Inspector General of Police, Economic Offences Wing3 to inspect the project work and enquire whether there was any loss caused to the Government in execution of the project. Pursuant thereto, EOW, CID, Kanpur, appointed an Investigating Officer (''IO') to enquire the matter. After preliminary enquiry, an F.I.R. was lodged on 6 July 2005. The Investigating Officer recorded statement of the complainant Smt. Meena Rajpur, Deputy Director of Agriculture (Soil Conservation), Chhedi Lal Gupta, Soil Conservation Officer, Unit IV Firozabad, who stated that no irregularity was committed in execution of the project, and statement of the applicant. Applicant stated that work of the applicant is of supervisory nature and he performed his duty as per orders of the higher authorities; applicant has not committed any irregularity in performing the work under the Scheme. After investigation, a charge sheet was submitted to the State Government seeking sanction to prosecute the applicants. Upon sanction, the learned Court below took cognizance of the offence vide order dated 5 April 2010. The cognizance order and consequential proceedings are under challenge.
It is submitted by learned counsel for the applicant that the prosecution is malicious as the complaint was lodged by a local leader; applicant is a petty employee (Accountant); Scheme was duly enquired by the Technical Audit Cell, which did not find any irregularity or financial loss; Scheme was executed as per norms prescribed by the Government; there is no evidence against the applicants linking them with the commission of the offence; there is no complaint by any labour or supplier of tractors employed in execution of the Scheme; work assigned to the applicant was of inspection, measurement and verification of the work executed.
It is, further, urged that in departmental enquiry conducted by the Technical Audit Cell, nothing adverse has been found, consequently, prosecution of the applicant based on the same material is abuse of the process of the court. It is further urged that the matter pertains to the year 1997-99, F.I.R. came to be lodged in 2005, thereafter, charge sheet was submitted, but cognizance was taken in 2010. It is, therefore, submitted that entire prosecution stands vitiated denying the applicants speedy trial. Reliance has been placed on the decision of the Supreme Court in Pankaj Kumar vs. State of Maharastra.
In rebuttal, learned A.G.A. submits that allegation against the applicants is of criminal conspiracy (Section 120 IPC), read with other sections for which the applicants have been charge sheeted. It is contended that payments were made in cash over and above the prescribed limit based on manufactured documents; applicant in conspiracy with other accused persons caused revenue loss to the exchequer. It is further contended that amount twice the prescribed rate was paid; the money was used for purposes other than for the purpose prescribed under the Scheme. The delay in trial is not attributable to the prosecution. There is no such departmental enquiry as is being submitted by the learned counsel for the applicants. The petition is liable to be rejected being devoid of merit.
Rival submissions fall for consideration.
As per the F.I.R., it is alleged that the tractors were engaged from outside, including, State of Rajasthan. Payments were made in cash, whereas, payments over and above Rs.2,000/- was to be paid through cheque. It is further alleged that the cost incurred per hectare, as shown from the record, is at Rs.6983/-, whereas, the Technical Asset Protection Report, 1997-98, the rate prescribed is at Rs.3100/-, per hectare, thus, causing revenue loss at Rs.57,14,644/-. Similar allegations have been made for loss caused under different heads. It is further alleged that the officials conspired and caused loss to the revenue @ Rs.3883/- per hectare by preparing forged and manufactured documents. First applicant along with 10 other accused persons are named in the F.I.R.. After investigation, charge sheet came to be filed against 7 accused persons including the applicants.
Learned counsel has placed reliance on the decision rendered in P.S. Rajya vs. State of Bihar, to submit that pursuing the prosecution against the applicants is not justified for the reason that the enquiry conducted by the department against the alleged irregularity / loss, nothing was found. The project was executed as per norms prescribed by the Government. It is further urged that in the given facts there has been inordinate delay caused by the prosecution in trial. The applicants have been denied speedy trail, thereby, infringing their right under Act 21.
The following questions arise for consideration from the rival contentions of the parties:
i) whether in view of the departmental enquiry, pursing prosecution against the applicants would tantamount to abuse of the process of the court;
ii) whether delay in trial in the given facts has violated the principle of speedy trial read into Act, 21 of the Constitution of India.
It would be apposite to examine the law on the proposition of law being pressed by the learned counsel for the applicant.
In State of N.C.T. of Delhi Vs Ajay Kumar Tyagi6 (for short "NCT Delhi case"), a three Judge Bench was called upon to answer a reference whether a person exonerated in departmental proceeding, no criminal proceedings can be lauched or continued. The issue for consideration by the Bench reads thus:
"The facts of the case are that the respondent has been accused of taking bribe and was caught in a trap case. We are not going into the merits of the dispute. However, it seems that there are two conflicting judgments of two Judge Benches of this Court; (I) P.S. Rajya vs. State of Bihar reported in (1996) 9 SCC 1, in which a two Judge Bench held that if a person is exonerated in a departmental proceeding, no criminal proceedings can be launched or may continue against him on the same subject matter, (ii) Kishan Singh Through Lrs. Vs. Gurpal Singh & Others 2010 (8) SCALE 205, where another two Judge Bench has taken a contrary view."
On having considered the authority on the proposition of law, Supreme Court, answered the reference in the following terms:
"We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy."
In P.S. Rajya v. State of Bihar7, (for short ''PS Rajya' case) the question before the Court was as to whether:-
"3. .......the respondent is justified in pursuing the prosecution against the appellant under Prevention of Corruption Act, 1947 notwithstanding the fact that on an identical charge the appellant was exonerated in the departmental proceedings in the light of a report submitted by the Central Vigilance Commission and concurred by the Union Public Service Commission."
The Court clarified in para 23 of the report that "...We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued..." In other words the Court did not lay down that an exoneration of an employee in departmental proceedings, the criminal prosecution has to be quashed.
In NCT Delhi, the Court, therefore, was of the opinion that the prosecution was not terminated in P.S. Rajya case on the ground of exoneration in the departmental proceedings but on the peculiar facts. The observation is as follows:
"The decision in the case of P.S. Rajya (supra), therefore does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed. It is well settled that the decision is an authority for what it actually decides and not what flows from it. Mere fact that in P.S. Rajya (Supra), the Supreme Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground."
P.S. Rajya case came up for consideration before the Supreme Court in State v. M. Krishna Mohan8, thereafter, in the case of Central Bureau of Investigation v. V.K. Bhutiani's9, the Supreme Court held that quashing of the prosecution was illegal holding that exoneration in departmental proceedings would not lead to exoneration or acquittal in criminal case. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein. The criminal case cannot be rejected on the basis of the evidence in the departmental proceeding or the report of the Enquiry Officer based on those evidence.
Recently in Ashoo Surendranath Tewari vs. The Deputy Superintendent of Police, EOW, CBI10, (for short ''Ashoo Tewari case), Supreme Court relying on Radheyshyam Kejriwal Vs. State of West Bengal and another11 (for short ''Radheyshyam Kejriwal case), set aside the judgment of the High Court and Special Judge and discharged the appellant from the offence under the Penal Code. The facts, therein, is that the employer SIDBI did not consider it a fit case, consequently, declined permission to prosecute the appellant. The Chief Vigilance Commission (CVC) after having gone through the arguments put forth by the CBI and SIDBI during the course of joint meeting was of the opinion that the appellant may have been negligent without any criminal culpability.
In Radhey Shyam Kejriwal, the adjudicating authority under the provisions of the Foreign Exchange Regulation Act, 197312, was not convinced with the Enforcement Directorate to impose penalty upon the appellant. In other words, if the departmental authorities themselves, in statutory adjudication proceedings recorded a categorical and an unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal prosecution and say that there is sufficient material. It would be unjust and an abuse of the process of the court to permit Enforcement Directorate & Foreign Exchange Regulatory Authority to continue with criminal proceedings on the very same material.
After referring to various decisions the Supreme Court in Radhey Shyam Kejriwal culled out the ratio of the decisions as follows:-
"38. The ratio which can be culled out from these decisions can broadly be stated as follows:
(i) Adjudication proceedings and criminal prosecution can be launched simultaneously;
(ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution;
(iii) Adjudication proceedings and criminal proceedings are independent in nature to each other;
(iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution;
(v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure;
(vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and
(vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases."
The Court finally concluded:
"39. In our opinion, therefore, the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court."
In nutshell, to recapitulate, the principle culled out in Radhey Shaym Kejriwal case, is that where the statutory adjudicating authority did not find prima facie case to impose penalty for violation of FERA, the prosecution based on the same material was held unjustified and abuse of the process of the Court. In Ashoo Tewari, CVC agreed with the competent authority of SIDBI (employer), after hearing the CBI, that complicity and culpability of the appellant was not found. The Court relying on para 38(vii) of Radhey Shaym Kejriwal and having regard to the detail order of CVC was of the considered opinion that the "chances of conviction in a criminal trial involving the same facts appear to be bleak".
Reverting to the facts of the instant case, learned counsel for the applicant is unable to show from the so called report of the Technical Audit Cell that complicity and culpability of the applicants was not found. The specific allegation against the applicants is that twice the amount over and above the sanctioned rate was spent. Further, the accused persons had made payment to the labourers and the tractors engaged for the Scheme in-cash by preparing false and manufactured documents. Reliance has been placed on the communication dated 30 May 2005, of Additional Director Agriculture (Soil Conservation), U.P., Agra Division, Agra, addressed to Director Agriculture, U.P. Krishi Bhawan, Lucknow, wherein, request was made that the investigation initiated after lodging of the F.I.R. be halted. It is noted therein that the Scheme for the year 1997-98 and 1998-99, the EOW was of the opinion that twice the sanctioned rate was released, whereas, the entire scheme was evaluated in 2001-2002. The EOW wrongly computed the work at a flat rate at Rs. 3100/-, whereas, as per norms the payment cannot exceed Rs.7200/- per hectare. In other words, it was stated in the communication that average of the different payments made per hectare would have to be taken and that sum should not exceed the upper limit, that is, Rs. 7200/- per hectare. Pursuant thereof, Director of Agriculture, vide communication dated 2 June 2005, placing reliance upon the letter of the Additional Director of Agriculture, requested the Government not to prosecute the officers of the department as there was no loss caused to the Government. It appears that the State Government did not act upon the communication and on 6 July 2005, F.I.R. came to be lodged. Thereafter, sanction was granted by the State Government for prosecution.
It is evident from the facts emerging from the material placed on record that no departmental proceeding, and/or disciplinary enquiry was ever conducted against the accused persons, including, the applicants. Further, the material relied upon by the I.O. is not part of any such proceedings. The prosecution is based upon an independent enquiry got conducted by the State Government by the E.O.W.. It is not the case of the applicant/accused that the prosecution is based upon the very same material relied upon by the department against the accused that was part of departmental statutory adjudication proceeding. The departmental enquiry being relied upon by the applicants was never accepted by the Government. The Government, on the contrary got an independent enquiry conducted to find out whether loss was caused to the Government. The final report came to be accepted by the Government. The authorities relied upon by the learned counsel for the applicant to submit that the applicants have been exonerated in the departmental enquiry lacks merit. The petition is bereft of the essential pleadings and foundation to that effect. The submission, accordingly, is rejected.
The next point pressed by learned counsel for the applicant is that the prosecution against the applicants should be quashed due to inordinate delay in concluding the prosecution and trial, thus, being violative of the concept of speedy trial enshrined in Article 21 of the Constitution of India.
In Abdul Rehman Antulay v. R.S. Nayak13 (Abdul Rehman Antulay case) the Court observed as follows:
"While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on -- what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one."
The aforesaid decision came up for consideration before a Seven-Judge Constitution Bench in the case of P. Ramachandra Rao Vs. State of Karnataka. The Court over ruled four earlier decisions* on the point, and while approving the ratio, the Court in Paragraph 29 (1) & (2) observed as follows:
"(1) The dictum in Abdul Rehman Antulay v. R.S. Nayak14 is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in Abdul Rehman Antulay v. R.S. Nayak15 adequately take care of right to speedy trial. We uphold and reaffirm the said propositions."
The Constitution Bench, in Abdul Rehman Antulay16, has formulated certain propositions, 11 in number, meant to serve as guidelines. The paragraphs relevant for the instant case are extracted:
(1).................................
(2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.
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... ... ... ... ... ... ... ... ...
(5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on -- what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
... ... ... ... ... ... ... ... ...
... ... ... ... ... ... ... ... ...
(8) Ultimately, the court has to balance and weigh the several relevant factors - ''balancing test' or ''balancing process' - and determine in each case whether the right to speedy trial has been denied in a given case.
(9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case.
(10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis."
The matter pertaining to reasonably expeditious trial again came up for consideration by Supreme Court in Ranjan Dwivedi vs. CBI through the Director General17. The Court relying upon the Constitution Bench and Larger Bench decisions declined to quash the proceeding which was pending for 37 years. Appellant/accused had approached the Court at the stage of argument, contending that the right enshrined in Article 21 was infringed. The Supreme Court held that length of the delay is not sufficient in itself to warrant a finding that the accused was deprived of the right to a speedy trial. The relevant paras reads thus:
"23. The length of the delay is not sufficient in itself to warrant a finding that the accused was deprived of the right to a speedy trial. Rather, it is only one of the factors to be considered, and must be weighed against other factors. Moreover, among factors to be considered in determining whether the right to speedy trial of the accused is violated, the length of delay is least conclusive. While there is authority that even very lengthy delays do not give rise to a per se conclusion of violation of constitutional rights, there is also authority that long enough delay could constitute per se violation of right to speedy trial. In our considered view, the delay tolerated varies with the complexity of the case, the manner of proof as well as gravity of the alleged crime. This, again, depends on case to case basis. There cannot be universal rule in this regard. It is a balancing process while determining as to whether the accused's right to speedy trial has been violated or not. The length of delay in and itself, is not a weighty factor."
25. Prescribing a time limit for the trial court to terminate the proceedings or, at the end thereof, to acquit or discharge the accused in all cases will amount to legislation, which cannot be done by judicial directives within the arena of judicial law making power available to constitutional courts; ........."
In the given facts of the case in hand, it is not in dispute that the Scheme pertains to the year 1997-98 and 1998-99. The State Government in July 1998 had directed the EOW to conduct an enquiry with regard to any loss caused to the government. F.I.R. came to be lodged on 6 July 2005 and charge sheet was filed on 13 March 2010. The applicants were summoned to face trial on 5 April 2010. Thereafter, applicant/accused had approached this Court by filing criminal writ petition, wherein, arrest of the applicants came to be stayed. Thereafter, applicant/accused filed petitions under Section 482 Cr.P.C., wherein, the Court, vide order dated 10 October 2013, had stayed the proceedings by directing no coercive action be taken against the applicant (36633/2013). The order reads thus:
"Heard learned counsel for the applicant and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C., has been filed for quashing the entire proceedings of S.S.T. No. 34 of 2010 (State Vs. Shiv Kumar Chandel and others, under Sections 467, 468, 471, 420, 409, 120B IPC and 13(2) P.C. Act,pending before the Special Judge/ Sessions Judge, Firozabad.
It is contended by learned counsel for the applicant that in the present case, F.I.R., was lodged on 06.07.2005 and charge sheet has been filed after a lapse of 5 years i.e. on 05.04.2010. It is thus, argued that as per settled principles of law of Hon'ble Apex Court, reported in AIR 2008 SC 3077 in the matter of Pankaj Kumar Vs. State of Maharastra in which, it has been held that such prolonged investigation which is not attributable to the applicant and taking note of the fact, the proceedings were quashed in the aforesaid case. It is thus contended that in the present matter charge sheet has been filed after 5 years, which is liable to be quashed by this Court.
Issue notice to the opposite party no.2 returnable within a period of four weeks. Steps be taken within a week.
Learned A.G.A. prays for and is granted four weeks' time for filing counter affidavit. Opposite party no.2 may also file counter affidavit within the same period. As prayed by learned counsel for the applicant, two weeks, thereafter, is granted for filing rejoinder affidavit.
List immediately after expiry of the aforesaid period.
Till the next date of listing, no coercive action shall be taken against the applicant in the aforesaid case."
Similar orders came to be passed in respect of other co-accused persons. It appears that the trial did not proceed thereafter. The trial court vide order dated 3 March 2020, however, summoned the applicant/accused to face trial pursuant to the direction of the Supreme Court in Asian Resurfacing of Raod Agency Pvt. Ltd. v. CBI18. Thereafter, the applicants are pressing the instant petition.
From the facts narrated herein above, it is evident that the delay, if any, has been caused by the applicants themselves, and the fault cannot be attributed to the prosecution of having unnecessarily/ deliberately caused delay in pursing the prosecution. The trial has not proceeded after the stage of cognizance as restrain orders were operating and the accused/applicants have not submitted to the trial. The delay perse, in the circumstances, has not violated the rights of the applicants to speedy trial.
The applications being devoid of merit is, accordingly, rejected.
The applicants to surrender before the trial court within three weeks from date. The trial court shall make an endevour to expedite the proceedings and conclude the trial, at the earliest possible, without granting unnecessary adjournment to either of the parties, provided there is no other legal impediment."
A perusal of the record reveals that the aforesaid application u/s 482 CrPC moved by the applicant was rejected on 22.1.2021 in which specific direction was given to the applicant to surrender before the trial court within three weeks from the date of the said order, as has been submitted by the learned counsel for the applicant, applicant has not complied with the said directions given in the said order. It is pertinent to mention here that though there is no bar to entertain the anticipatory bail application directly as laid down by the Apex Court in Sushila Aggrawal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 and in Ankit Bharti vs. State of U.P and another, decided on 2nd March, 2020 by a larger Bench of this Court, yet facts and circumstances of the present case are not of such as the same be treated as special case. Applicant has not complied with the directions given in the order passed in said application under Section 482 CrPC. A perusal of the order sheet also reveals that bailable warrant is continuing against the applicant, as he is not participating in the proceedings before the trial court. Hence, taking into consideration the entire facts and circumstances of the case and the fact that the application under Section 482 CrPC moved by the applicant was dismissed finding a prima facie case against the applicant and also keeping in view the conduct of the applicant, in the opinion of the Court, prayer made in this application is not liable to be granted. The application being devoid of merits is liable to be dismissed and the same is accordingly dismissed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 23.2.2021 safi