Arun Kumar Singh [Second Bail] vs State Of U.P.Thru. C.B.I./A.C.B. ...
2021 Latest Caselaw 9354 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Reserved on 01.07.2021
 
Delivered on 03.08.2021
 
Court No. - 27
 
Case :- BAIL No. - 8706 of 2020
 
Applicant :- Arun Kumar Singh [Second Bail]
 
Opposite Party :- State Of U.P.Thru. C.B.I./A.C.B. Lko.
 
Counsel for Applicant :- Pranjal Krishna,Shivam Pandey
 
Counsel for Opposite Party :- A.S.G.,Shiv P. Shukla
 

 
Hon'ble Karunesh Singh Pawar,J.

Heard Shri Pranjal Krishna, learned counsel for the applicant and Shri Shiv. P. Shukla, learned counsel for C.B.I.

This is the second bail application filed by the applicant. The first bail application of the applicant was rejected by this Court vide order dated 17.01.2020.

Charge sheet in the matter was filed under Sections 173 Cr.P.C. against nine accused persons including the present applicant on 26.12.2017 under Sections 120-B read with sections 420, 466, 467, 468, 471, 472 I.P.C. Later on a supplementary charge sheet was filed by the C.B.I. on 12.09.2018 against the applicant and 19 other accused persons.

Learned counsel for the applicant submits that the second bail application is being pressed on the following legal and factual grounds which are neither being pressed earlier nor deliberated before this Court:-

(i) It is submitted that while rejecting the first bail application, the trial court was directed to expedite the trial expeditiously preferably within a period of one year from the date of receipt of certified copy of the order dated 17.01.2020 and the prosecuting agency was also directed to ensure presence of the witnesses on the date fixed by the trial court and was further directed not to seek any unnecessary adjournment.

(ii) It is next submitted that in spite of the order passed by this Court, the trial is still at the stage of framing charges/discharge.

It is submitted that even if the prima facie case against the applicant is considered as it is, the same would not be an impediment of consideration for bail application of the applicant. In support he relies on the judgment reported in "(AIR 1984 SC 372) Bhagirath Singh Jadeja Vs. State of Gujrat". He further submits that even in the case where prima facie ingredients of the offences are made out, the accused-applicant is liable to be enlarged on bail as consideration for bail in the case of offence under I.P.C. 1860 and Prevention of Corruption Act, 1988 do not have to meet the touchstone of legal embargoes provided under certain special statutes such as Prevention of Money Laundering Act, 2002 and the Companies Act, 2013.

It is further submitted that presumption of innocence at the stage of bail lies in favour of the applicant. It is also submitted that no new allegations assigned to the applicant in the charge sheet dated 12.09.2018 filed in criminal case No. 1538 of 2018 which is nothing but on offshot of the criminal case No. 1539/2018 as both criminal cases have originated from one and only F.I.R. of R.C. No. 0062016A0004of C.B.I./ACB/Lucknow, but it has been illegally registered as a separate criminal case.

It is also submitted that the co-accused namely Vivek Kumar Srivastava prepared fake khataunis and also obtained false RTO Registration Certificates in order to get KCC/Tractor Loans from the SBI Branch. In fact the firm was run by Vikas Kumar Srivastava who has been granted bail by this Court vide order dated 12.12.2018 passed in bail No. 10511/2018 and 05.02.2019 passed in bail No. 5938/2018 which are on record as Annexure No. 5 and 6 to the bail application. Learned counsel for the applicant seeks parity with the order of co-accused namely Vivek Kumar Srivastava.

It is next submitted that the alleged amount taken by the applicant's wife namely Pramila Singh (co-accused) has been duly repaid by her to the bank concerned and no dues certificate to that effect has been issued by the State Bank of India to the applicant's wife which is on record as Annexure No. 7.

Learned counsel for the applicant further submits that as per para 16.13 of the charge sheet dated 26.12.2017, the allegation of preparing forged khataunis is against Shri Arun Kumar, Sandeep and Om Prakash Singh, Bank's panel advocate and no allegation has been levelled against the present applicant-accused.

He relies on the judgment of Hon'ble Supreme Court reported in "(2018) 7 SCC page 581 Sheila Sebastian Vs. R. Jawaharaj" and has laid emphasize on para 25 of the judgment. It is submitted that forgery cannot be imposed on a person who is not the maker of the same and by constituting the offence of forgery it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused applicant is not liable for the offence of forgery. It is also submitted that it is not the case of C.B.I. that the present accused person is the maker of the false document. He has also relied on the judgment of Supreme Court reported in "(2012) 9 SCC 696 Baliya @ Bal Kishan Vs. State of Madhya Pradesh"

It is further submitted that there is no possibility of the applicant of fleeing away after being released from jail or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.

He lastly submits that due to covid-19 pandemic, the trial is held up.

Per contra, Shri Shiv P. Shukla, learned counsel for C.B.I., has opposed the arguments advanced by learned counsel for the applicant submitting that in view of the judgment of Division Bench of this Court reported in "(1999) All LJ 1515 Satya Pal Vs. State of U.P", fresh arguments in second bail application or subsequent bail applications for an accused cannot be allowed to be advanced on those very facts that were available to the accused while the first bail application was moved and rejected. Thus, it is submitted by learned counsel for the C.B.I. that none of the grounds advanced by the accused-applicant are the fresh grounds and the grounds raised by the applicant were available at the time of filing of the first bail application or if the accused has not taken these grounds earlier, it is not open for him to agitate these grounds in the second bail application in view of the aforesaid judgment Satya Pal (supra).

On due consideration to the arguments advanced by the learned counsel for the parties I am in agreement with the arguments advanced by the learned counsel appearing for C.B.I., law is well settled and the applicant is not allowed to raise any fresh grounds in the second bail application which was available at the time of first bail application except the ground that the applicant is in jail since 20.04.2019 and while rejecting the first bail application on 17.01.2020, this Court directed the trial court to conclude the trial within one year from the date of receipt of certified copy of order dated 17.01.2020, however, since then trial is as it is and no progress has been made in the trial. It is not disputed between the parties that the order passed by this Court dated 17.01.2020 is on record with the trial court .

On due consideration to the law laid down in "Hussain and another Vs. Union of India with AASU Vs. The State of Rajasthan, reported in (2017) 5 SCC 702, Abdul Rehman Antulay and others Vs. R.S. Nayak and another" reported in (1992) 1 SCC 225, Sanjay Chandra Vs. C.B.I, reported in (2012) 1 SCC 40, "Vinod Bhandari Vs. State of M.P., reported in (2015) 11 SCC 502, Kalyan Chandra Sarkar Vs. Rajesh Rajan reported in (2015) 11 SCC 502" the speedy trial is the fundamental right which flows from Article 21 of the Constitution and prolonged delay disposal of the trials for no fault of the accused, confers a right upon him to apply for bail. In this case, the trial is at the stage of charge/discharge, although it was directed by this court to conclude the trial within one year. It also directed to C.B.I. that they will not seek any undue adjournment, however, from the perusal of the order sheet it appears that C.B.I. has failed to produce the accused-applicant from jail before the trial court on 06.03.2020, 08.07.2020, 21.07.2020, 04.08.2020, 18.08.2020 and 17.09.2020 and for several dates the trial court was closed due to lockdown.

This Court has taken note on the fact that on 13.06.2020, the World Health Organization declared the Noval Covid-19 as a pandemic which was subsequently recognized by the Government of India and Ministry of Health issued certain guidelines and even sou motu cognizance has been taken by the Apex Court by means of Suo Motu writ petition (Civil) No. 01/2020. In furtherance of the orders passed by the this Court, a high powered committee was formed in the State of U.P. for the purpose of releasing certain inmates, but the applicant could not be released on interim bail as he did not fall under the class/category of under-trials prisoners, who could be released under the said scheme and thus, the applicant is still in jail since 20.04.2019 and trial has not proceeded without of his fault.

On due consideration to the arguments advance by learned counsel for the parties and in view of the law laid down by the Apex Court in the aforesaid cases, so also the fact the trial is only at the stage of charge and looking to the prevailing covid-19 situation, it is not likely to be concluded in near future, the applicant has already been in jail for more than two years, there are still 28 witnesses have to be examined before the trial court and also considering that in spite of directions of this Court, the C.B.I. could not produce the applicant-accused before the trial court on several dates, so also the court remained closed for several dates due to covid-19, the applicant has no criminal history, case for bail is made out.

Let the applicant, Arun Kumar Singh, involved in Criminal Case No. 1539/2018, under Sections 420/466/467/468/471/472 IPC , Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, arising out of R.C. No. 0062016A0004, registered with Central Bureau of Investigation, Anti Corruption Bureau, Lucknow, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence during the trial.

(ii) The applicant will not pressurize/ intimidate the prosecution witness.

(iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

Order Date :- 03.08.2021

R.C.