Court No. - 52
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6501 of 2021
Applicant :- Vineesh And 2 Other
Opposite Party :- State Of U.P. And 2 Other Counsel for Applicant :- Santosh Kumar Kesarwani Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Santosh Kumar Kesarwani, learned counsel for the applicants, Sri Pankaj Mishra, learned A.G.A. for the State and perused the material on record.
The present anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicants Vineesh, Abhishek and Smt. Kusum, with the prayer to grant anticipatory bail in F.I.R. dated 08.7.2018 in Case Crime No. 0604 of 2018, under Sections 406, 420, 302, 120B I.P.C., P.S.- Sikandrabad, District Bulandshahr as well as in Case No. 4418 of 2020, pending before the C.J.M., Bulandshahr arising out of charge sheet dated 06.092020, in Case Crime No. 0604 of 2018, under Sections 406, 420, 471, 467, 468 I.P.C., P.S.- Sikandrabad, District Bulandshahr till conclusion of trial.
It is argued that the applicants have been falsely implicated in the present case. It is argued that the deceased was employed in Merchant Navy who died in Malaysia on account of drowning. The death certificate has been issued by the authorities at Malaysia mentioning the death as being due to drowning. It is argued that although the F.I.R. was initially registered under Sections 406, 420, 302, 120B I.P.C. at P.S.- Sikandrabad, District Bulandshahr, but the police after investigation has submitted charge sheet under Sections 406, 420, 471, 467, 468 I.P.C. only. It is argued that the F.I.R. has been lodged against the applicants with the allegation that they have taken money from the deceased for providing job in Merchant Navy which is incorrect. The deceased died an accidental death in Malaysia for which the applicants are not responsible. It is argued that after filing of the charge sheet in the matter, the applicants have filed an application under Section 482 Cr.P.C. being Application U/S 482 No. 18923 of 2020 (Vineesh and 2 other Vs. State of U.P. and another), against the said charge sheet which has been dismissed vide order dated 09.2.2021 and as such, the applicants are apprehending their arrest and filed the present anticipatory bail application under Section 438 Cr.P.C. The applicants have no criminal history as stated in para-28 of the affidavit.
Earlier the arrest of the applicants was stayed by a Division Bench of this Court vide order dated 13.8.2018 passed in Criminal Misc. Writ Petition No. 21997 of 2018 (Vineesh and 2 other Vs. State of U.P. and 3 others), till submission of police report under Section 173(2) Cr.P.C.
The learned State counsel opposed the prayer for anticipatory bail and argued that from the material collected during investigation, it cannot be said that the applicants are not involved in the present matter. The present case is of serious nature. It is argued that looking to the facts and circumstances of the case, even a co-ordinate Bench of this Court has refused to interfere in the order taking cognizance dated 14.9.2020 and also has refused to quash the charge sheet. It is argued that the applicants are involved in the present matter.
After having heard learned counsels for the parties and perusing the record, it is apparent that the applicants had approached this Court for quashing of the charge sheet and the order taking cognizance which was dismissed by a co-ordinate Bench of this Court vide order dated 09.2.2021 passed in Application U/S 482 No. 18923 of 2020. The said order is extracted herein below :
"Vakalatnama filed by Sri Gaurav Singh Chauhan, learned Advocate, on behalf of opposite party no. 2, is taken on record.
Supplementary affidavit filed by Sri Gaurav Kakkar, counsel for the applicants, is also taken on record.
Heard Sri Gaurav Kakkar, learned counsel for the applicants, learned A.G.A. for the State and Sri Faiz Alam, brief holder of Sri Gaurav Singh Chauhan, counsel appearing on behalf of opposite party no. 2.
The present application has been filed seeking quashing the charge-sheet dated 06.09.2020 & cognizance order dated 14.9.2020 as well as entire proceedings of Case No. 4418 of 2020, arising out of Case Crime No. 0604 of 2018, under sections 406, 420, 471, 467, 468 IPC, Police Station Sikandarabad, District Bulandshahr whereby the applicants have been summoned.
The counsel for the applicants argues that from the plain reading of the averments made in the FIR as well as charge- sheet assuming them to be gospel truth, no offence can be made out against the applicants under sections 406, 420, 471, 467, 468 IPC in which charge-sheet has been submitted. He has drawn my attention towards an FIR in question wherein it was alleged that the applicants had asked the deceased Prashant Payal to bring money for getting job in Malaysia and allegedly as per the information in the FIR the said amount was paid. Subsequently, it was found that the said Prashant Payal had died due to drowning at Malaysia. The charge sheet has been filed against the applicants under sections 406, 420, 471, 467, 468 IPC.
From perusal of the charge sheet as well as the averments contained in the FIR, it cannot be said that no triable case is made out in exercise of power under section 482 Cr.P.C. as it is well settled that exercise of powers under section 482 Cr.P.C. can be done in rarest of the rare case and in terms of the guidelines as laid down by the Supreme Court tin the case of State of Haryana and Others Versus. Ch. Bhajan Lal and Others, 1992 AIR 604. No case is made out for warranting interference under section 482 Cr.P.C.
The application u/s 482 Cr.P.C. is devoid of merit and is rejected.
However, if the applicants apply for bail, the same shall be considered by the Court below in view of the settled law laid down by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P., reported in 2004 (57) ALR-290 as well as judgement passed by Hon'ble Apex Court reported in Lal Kamlendra Pratap Singh Vs. State of U.P., 2009 (3) ADJ 322 (SC)."
In the said order in the last paragraph the Court had directed that if the applicants apply for bail the same shall be considered by the court below and directions were passed for the same, but the applicants chose to approach this Court by moving the present anticipatory bail application under Section 438 Cr.P.C.
Looking to the facts and circumstances of the case and perusing the material on record, it is evident that there are allegations against the applicants. The applicants are named in the F.I.R. and the role has been assigned to them. The investigation has concluded and charge sheet has been submitted which has been considered by a co-ordinate Bench of this Court while entertaining the Application U/S. 482 No. 18923 of 2020. But the Court has observed that there is no case made out warranting interference under Section 482 Cr.P.C.
Looking to the facts and circumstances of the case, this Court does not find it proper to interfere in the matter.
Accordingly, the anticipatory bail application under Section 438 Cr.P.C. is rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant(s) along with a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked.
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.
(Samit Gopal,J.)
Order Date :- 27.10.2021/Naresh