Court No. - 67
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 19528 of 2021
Applicant :- Vinod Kumar Mishra
Opposite Party :- State of U.P.
Counsel for Applicant :- Rajiv Lochan Shukla,Anil Kumar,Arya Suman Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
(1) Heard Sri Rajiv Lochan Shukla, learned counsel for the applicant and learned A.G.A and perused the record.
(2) The instant application is being moved by the applicant Vinod Kumar Mishra invoking the powers of Section 438 Cr.P.C. that he has every reason to believe that he may be arrested on the accusation of having committed a non-bailable offence in connection with Special Sessions Trial No.35 of 2021 in relation to Case Crime no. 213 of 2006, under Sections 34, 406, 409, 420, 467, 468, 471, 120B IPC and Section 13(1)D read with 13(2) of the Prevention of Corruption Act, Police Station Manjhanpur District Kaushambi.
(3) From the record, it is evident that the applicant has approached this Court after getting his anticipatory bail rejected from the Court of Session vide order dated 20.9.2021 and 27.10.2021.
(4) Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A. as per Section 438(3) Cr.P.C. (U.P. Amendment) is not required.
(5) It has been contended by the learned counsel for the applicant that the applicant has got no criminal antecedents and he have not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced by learned counsel for the applicant on behalf of the applicant that he would render all requisite co-operation and assistance in the process of law and with the investigating agency and shall not create any hindrance to reach to its logical conclusion and shall not flee away from the course of justice.
(6) Learned counsel for the applicant has strenuously argued that the applicant has been made target just to besmirch his reputation and belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicant to demonstrate the falsity of the accusation made in the FIR against the applicants by the informant. Learned counsel for the applicants has also relied upon the judgements in the cases of Arnesh Kumar vs State of Bihar and another, (2014) 8 SCC 273; Joginder Kumar vs State of U.P. and others (1994) 4 SCC 260 and Sanaul Haque vs State of U.P. and another, 2008 Cri. LJ 1998, to buttress his contentions.
(7) Submission made by the counsel for the applicant that the charge sheet has been submitted by the police on 27.10.2021 and the cognizance order was passed on 4.1.2021. Now the applicant is apprehending his arrest.
For the incident said to have taken place in 2003-04 the present FIR was lodged on 5.11.2006 against five named accused persons including the applicant. The applicant is said to be the Accountant in DRDO, District Kaushambi. A departmental inquiry was also initiated to enquire into the conduct of the applicant by one Joint Development Commissioner, Lucknow Division, Lucknow who in that probe of allegation of alleged misfeasance and fraud, exonerated the applicant from all the charges vide order dated 26.4.2019. Parallel to this, the Investigating Officer kept on investigating the matter and of late on 27.10.2020 submitted a report under Section 173(2) CrPC and the learned Magistrate has taken a mechanical cognizance on the offence on 4.1.2021.
Learned counsel for the applicant has relied upon the judgment of the Hon'ble Apex Court in Ashoo Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI and another, reported in 2020 (9) SCC 636, wherein the Hon'ble Apex Court has opined as under:-
"(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"
The applicant apprehends his arrest but learned counsel for the applicant contends that the applicant will faithfully participate in the trial and will not tamper any evidence against him.
(8) Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application by mentioning that though the applicant has got no criminal antecedents but there is nothing on record to satisfy that the police personnel are after the applicant to arrest him. The alleged apprehension on behalf of applicant is imaginary and unfounded one. Learned A.G.A. has also submitted that in view of the seriousness of the allegations made in the F.I.R., the applicants are not entitled for any relaxation from this Court.
(9) After the close scrutiny of Section 438 Cr.P.C.(U.P. Act No.4 of 2019) and its relevant clauses, the Court is satisfied that the applicant has made out the case for interim order protecting the liberty of applicant in connection with aforesaid case crime pending investigation.
(10) Without expressing any opinion upon ultimate merits of the case either ways which may be adversely affect the investigation and subsequent stage of the case, the Court directs that in the event of arrest of the applicant in aforesaid case crime, he shall be released on bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Arresting Officer till further orders of this Court with the conditions that :
(i) The applicant/applicants shall make himself/themselves available for the interrogation by the police as and when required. The Investigating Officer of the case would give 48 hours prior notice or telephonically inform the concerned accused-applicant to remain available to him/them for the purposes of interrogation and the accused-applicants are obliged to abide by such directions.
(ii) The applicant/applicants shall not directly or indirectly make any inducement, threats or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.
(iii) The Investigating Officer of the case would make all necessary endeavour to gear up the investigation in utmost transparent and professional way and would try to conclude the same within a maximum period of 90 days. During this period the accused- applicants would not leave the State of Uttar Pradesh without informing the Investigating Officer of the case and sharing his contact number.
(iv) In the event the applicant/applicants is/are having his/their passports, he/they will have to surrender the same before the concerned SP/SSP of the District till the submission of report u/s 173(2) Cr.P.C.
(11) In the event, the applicant breach or attempt to breach any of the aforesaid conditions or wilfully violate above conditions or abstains himself from the investigation, it would be open for the Investigating Officer or the concerned authority to apply before the court of Session for cancellation of interim protection and the Court of Session has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.
(12) While entertaining the instant anticipatory bail application before this Court, there is no concrete material on record except the canvassed apprehension of the applicant on his arrest and the severity of accusation made in the FIR against him. After being satisfied on the limited material, the interest/liberty of the applicant is protected by this Court with aforesaid riders during the course of investigation, after recording its nascent satisfaction. However, continuance of instant interim protection or ultimate fate of instant application would be decided, subject to the counter affidavit filed by learned A.G.A. and the material brought on record against the applicant during the investigation.
(13) Since the charge sheet has been submitted, learned A.G.A. should file counter affidavit within a period of six weeks from today. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
(14) List this anticipatory bail application after two months before appropriate Court.
Order Date :- 17.12.2021 SP