Jagdish Prasad Jaiswal vs State Of U.P. And Another
2021 Latest Caselaw 4951 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

               Reserved On:- 07.04.2021 
 
   Delivered On:- 13.04.2021 
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9550 of 2020
 

 
Applicant :- Jagdish Prasad Jaiswal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :-Anil Kumar Bajpai
 
Counsel for Opposite Party :-G.A.
 
Hon'ble Siddharth, J.

1. Heard Sri Anil Kumar Bajpai, learned counsel for the applicant; Sri Ashok Kumar Ojha, who claims himself to be the complainant on whose complaint the opposite party no. 2 lodged the FIR against the applicant and learned A.G.A for the State.

2. The instant Anticipatory Bail Application has been filed with a prayer to grant an anticipatory bail to the applicant, namely, Jagdish Prasad Jaiswal, in Case Crime No.- 847 of 2006, under Section 409 IPC Police Station- Kothi Bazar, District- Maharajganj.

3. 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.

4. The allegation against the applicant in the FIR lodged against him by the Executive Officer of Nagar Panchayat, Siswa Bazar, District- Maharajganj is that a sum of Rs. 6,44,000/- was sanctioned on 16.03.2005 to the Nagar Panchayat aforesaid for development works. There is allegation that despite there being ban by the State government regarding construction of CC road, the applicant along with the co-accused got the same constructed and made illegal payments to the contractors. There is allegation of misappropriation of public money against him.

5. Learned counsel for the applicant has submitted that the development works were carried out under the supervision of Executive Officer and the Junior Engineer. After completion of works the competent authorities had made the physical inspection/verification of the works and thereafter on their certificates the money was paid to the contractor. The applicant was President of the Nagar Panchayat since the year 2003 to 2005. After completion of his tenure in the year 2005 the FIR was lodged on 10.07.2006.

6. The applicant challenged the FIR aforesaid before the Lucknow Bench of this Court and was granted protection from arrest on 08.08.2006. Thereafter charge sheet was submitted against him on 29.07.2009 and he was summoned by the Magistrate on 05.09.2012 on the basis of cyclostyled order which was challenged before this Court and the order was set aside with a direction to pass fresh order after due application of mind. On 28.05.2013 a detailed summoning order was passed by the C.J.M, Maharajganj, which was challenged by the applicant before this Court and he was given protection of 45 days from arrest and directed to surrender and obtain bail as per the order dated 18.07.2013. The applicant approached the Hon'ble Supreme Court against the aforesaid order of this Court and after initial grant of stay, the Hon'ble Supreme Court directed by the order dated 23.08.2016 that if the applicant is appearing in the proceedings he may be granted bail and if he is not appearing he may be taken into custody and court should proceed in accordance with law.

7. It has been submitted finally that the court below has not granted bail to the applicant as per order of Hon'ble Supreme Court and has issued non-bailable warrant against him on 25.11.2020. Hence, this application was filed in December, 2020.

8. Sri Ashok Kumar Ojha, Advocate claiming himself to be necessary party to be heard has submitted that the applicant is absconding from the proceedings after the order of the Supreme Court dated 23.08.2016 and trial is held up. Non-bailable warrants are being issued against him but he is not appearing.

9. Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant and his conduct, he is not entitled to grant of anticipatory bail.

10. After hearing the rival contentions this court finds that charge sheet was submitted against the applicant on 29.07.2009. Thereafter he has resorted to number of proceedings before this Court and once before the Apex Court also and by the order dated 23.08.2016 the Apex Court in Special Leave to Appeal (Crl.) No. 10407 of 2013 had directed the Magistrate concerned to grant bail to the applicant in case he is cooperating with the proceedings and reject the same, if he is not cooperating with the same.

11. There is nothing on record to indicate what happened after the order of the Apex Court was passed on 23.08.2016. The applicant has brought on record the order sheet of the Court from 06.10.2014 to 04.12.2016 as Annexure-10 to the affidavit in support of anticipatory bail application. In the order sheet there is no order which may indicate that the applicant produced the order of the Apex Court dated 23.08.2016 before the C.J.M., Maharajganj. The order sheet shows that the dates have been fixed by the Court below from 06.10.2016 to 04.12.2016 on the ground that the proceedings have been stayed by the High Court. As considered above there was no stay of proceedings from the High Court during this period. Since the last application of the applicant under Section 482 Cr.P.C No. 23416 of 2013 was disposed of on 18.07.2013 directing him to surrender and obtain bail within 45 days. Therefore, it appears that the applicant did not brought the correct facts before the trial court after the order dated 18.07.2013 of this Court noted above was passed.

12. A supplementary affidavit has been filed by the counsel for the applicant bringing on record the order sheet of the Court below. A perusal of the order sheet of the Court below shows that after 04.12.2016 next dates fixed were 03.03.2017, 02.06.2017, 20.12.2017, 19,03.2018, 19.06.2018, 08.09.2018, 18.11.2018, 25.01.2019, 25.04.2019, 25.05.2019, 22.07.2019, 02.08.2019, 20.08.2019, 19.09.2019, 30.09.2019. 20.09.2019, 29.10.2019 and 04.12.2019. On all of these dates Court of CJM, Maharajganj has passed the order that the proceedings of the case are stayed by the High Court. Only by the order dated 24.01.2020, it appears that notices were issued to the applicant. Notices was issued again on 15.02.2020, thereafter lockdown started and by the orders dated 17.08.2020 and 20.10.2020 notices were issued to co-accused and the applicant. On 02.11.2020 the C.J.M., Maharajganj has passed the order that accused persons are absent. In the order it has been mentioned that the Special Leave Petition No. 10407 of 2013 was dismissed by the Apex Court thereafter the accused has moved an application under Section 482 Cr.P.C. No. 2036 of 2020 which was dismissed directing the Court below to conclude the trial within four months. The order further notes that the applicant has not appeared and obtained bail from the Court. From the perusal of the material on record, it was found by the Chief Judicial Magistrate that the proceedings of the case are not stayed by any higher Court and directed issuance of non-bailable warrant against the applicant. Again on 25.11.2020 and 07.12.2020 non-bailable warrants have been issued against him. After grant of interim anticipatory bail by this Court on 18.12.2020 only the counsel for the applicant appeared on 18.02.2021 before the Court below along with the copy of order of this Court.

13. After considering argument advanced and the facts on record, it is clear that the applicant had been absent from the Court proceedings for a long time even after the order of the Apex Court dated 23.08.2016 and the proceedings have been delayed on the non-existent ground that the proceedings of the Court below are stayed by the High Court. It is clear from the material on record that there was no such order of stay operating in favour of the applicant before and after passing of the order dated 23.08.2016 of the Apex Court in the S.L.P. Applicant was only granted stay of arrest in Crl. Misc. Writ Petition No. 4665 (M/B) of 2006 by the order dated 08.08.2006 which came to an end after the charge sheet was submitted against the applicant on 29.07.2009. Thereafter the applicant challenged the charge sheet before this Court and his prayer was turned down on 08.02.2013. He never moved any application before the Court to grant him bail as per order dated 23.08.2016 of the Apex Court. It is not clear from order sheet on record when the aforesaid order was filed before the Court below.

14. Further the applicant has approached this court after submission of charge sheet him. He has not brought on record the material collected by the Investigating Officer in support of charge sheet nor has made any pleading in the application as to how no charge is made out against him. Also in view of paragraph nos. 43(8) and 45(i)(ii) of the judgment of this Court in Criminal Misc. Anticipatory Bail Application No. 2110 of 2021, Shivam vs. State of U.P. and Another, the applicant is not entitled to any relief since he has not complied with the requirements given in the aforesaid paragraphs of the judgment of this Court, which provides clearly when and after fulfillment of what conditions an anticipatory bail of an accused can be considered by this Court after submission of charge sheet.

15. Therefore, keeping in view the overall facts of the case and conduct of the applicant he is not entitled to grant of anticipatory bail.

16. The interim anticipatory bail granted to the applicant vide order dated 18.02.2021 is cancelled. The anticipatory bail application is rejected.

Order date:- 13.04.2021

Rohit