Allahabad High Court
Anilesh Kumar vs State Of U.P. on 16 June, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11519 of 2021
Applicant :- Anilesh Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Uma Nath Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Vivek Prakash Mishra, learned counsel for applicant-Anilesh Kumar and Sri Janardan Prakash, learned AGA for the State.
2. This anticipatory bail application has been filed on account of registration of Case Crime No. 0005 of 2021 at Police Station-Dumariyaganj, District-Siddharth Nagar under Sections 419, 420, 120-B, 467, 468, 471 IPC on 13.01.2021.
3. Allegation on the applicant along with other co-accused persons is of fraudulently misusing the forum of procurement of paddy at minimum support price whereby accused persons have been charged of procuring paddy through middleman, which was not produced by them and then with the use of contacts, fraudulently selling it at the centers fixed for procurement, thus, defrauding the State, which has established a procedure for minimum support price, so to cause benefit to the small and marginal farmers.
4. Learned counsel for applicant submits that his Aadhar Card has been misused and he has not received any consideration in his bank account. He submits that he is innocent and he has not been party to the said fraud, committed by the Gram Pradhan and other influential persons. He places reliance on the judgment of a Coordinate Bench in Criminal Misc Anticipatory Bail Application U/s 438 Cr.P.C. No. 3832 of 2021 (Ved Prakash and Another vs. State of U.P.), whereby a Coordinate Bench of this Court relying on the judgment of this Court in case of Amrawati and Another vs. State of U.P.; 2004 (57) ALR 290 and in the case of Lal Kamlendra Pratap Singh vs. State of U.P.; 2009 (3) ADJ 322 (SC), has granted interim protection for 90 days directing the court below to decide their applications as per the settled law in case of Amravati and Another (supra) and Lal Kamlendra Pratap Singh (supra) and till then no coercive action has been directed to be taken against the applicants.
5. Application has been thereafter disposed of.
6. Learned AGA, in his turn, submits that firstly, applicant has directly approach this Court, which is in violation of the law laid down by the Constitution Bench consisting five Judges of this Court in the case of Ankit Bharti vs. State of U.P. and another, 2020 (3) ADJ 165 (F.B.). Learned AGA submits that Coordinate Bench has not taken into consideration the law laid down in case of Ankit Bharti (supra) and Nathu Singh Vs. The State of U.P.; ICL 2021 (5) SC 937.
7. It is further submitted that provisions contained in Section 438(2) Cr.P.C., though gives a discretion to the Court of Sessions or the High Court to issue an interim order to grant anticipatory bail in sub-section (1) of Section 438 Cr.P.C., the Court is duty bound to indicate therein the date, on which application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit. Reading this provision, it is submitted that Coordinate Bench in case of Ved Prakash and Another vs. State of U.P. has not followed the statutory provisions, as contained in Section 438(2) Cr.P.C. and has granted interim protection for a period of 90 days and has directed the accused persons to apply for bail before the court below and has further directed the court below to consider the case of the applicants in the light of the law laid down in case of Amrawati and Another (supra), so also Lal Kamlendra Pratap Singh (supra).
8. At the outset, learned counsel for applicant was given an option to withdraw the application and apply to the Sessions Court in the light of the law laid down by the Constitution Bench consisting five Judges of this Court in the case of Ankit Bharti vs. State of U.P. and another, 2020 (3) ADJ 165 (F.B.), but learned counsel for applicant insists that case be decided on merits, therefore, merits of the case are being considered as under.
9. After hearing learned counsel for the parties, it is evident that order passed in case of Ved Prakash and Another (supra), cannot be taken as a binding precedent, inasmuch as, it has failed to take into consideration the law laid down by the Constitution Bench consisting five Judges of this Court in case of Ankit Bharti (supra).The law laid down in case of Amrawati and Another (supra), so also Lal Kamlendra Pratap Singh (supra), are applicable, when provisions of anticipatory bail was not applicable in the State of U.P. It is also evident that statutory provisions contained in sub-section (2) of Section 438 Cr.P.C. have not been followed and no date has been fixed for final disposal of the anticipatory bail application, but with interim protection, matter has been relegated to the Sessions Court.
10. Further, the fact of the matter is that appreciating the factual matrix of the case, I am of the opinion that an important aspect has not been placed before the Coordinate Bench namely, provisions of Sections 419, 420, 467, 468, 471, 120-B IPC were not placed correctly, inasmuch as, allegation on the applicant is to help co-conspirators in procuring paddy through middlemen, which they had sold at various procurement centers, though, the paddy was not produced by the sellers and thus, they tried to cheat the system by fraudulently selling the produce, which was not their own with a view to make unlawful gain and dishonestly taking away the rights of actual farmers for whom the scheme of M.S.P. and procurement has been promulgated.
11. In view of such facts, I am of the view that not only there is no parity, but applicant is not entitled to the benefit of an order, which has not taken into consideration, Constitution Bench's judgment of this Court and have also not taken into consideration the statutory provisions contained in Section 438(2) Cr.P.C., as are applicable to the State of U.P.
12. Thus, application fails and is dismissed.
Order Date :- 16.6.2021
Vikram/-
