Smt Nishu Tyagi vs State Of U.P.
2022 Latest Caselaw 9032 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 74
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6041 of 2022
 

 
Applicant :- Smt Nishu Tyagi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mayank Yadav,Saurabh Chaturvedi,Sr. Advocate,Vivek Kumar Singh
 
Counsel for Opposite Party :- G.A., Geetam Singh,Rajesh Kumar Tiwari
 

 
Hon'ble Suresh Kumar Gupta,J.

Heard Sri Indra Kumar Chaturvedi, learned Senior Counsel assisted by Sri Vivek Kumar Singh, learned counsel for the applicant, Sri Geetam Singh, learned counsel for the first informant and learned Additional Government Advocate for the State.

Counter affidavit filed today by the learned counsel for the first informant and rejoinder affidavit filed today by the learned counsel for the applicant are taken on record.

The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending her arrest in connection with Case Crime No.136 of 2020, under Sections 406, 504, 506, 420, 467, 468, 471 IPC, Police Station- Chhapar, District -Muzaffar Nagar.

Learned counsel for applicant has submitted that the applicant, who is principal of Vibgyour Public School, has been falsely implicated in this case and he has not committed any offence as alleged by the prosecution. He further submits that the first informant/complainant lodged the F.I.R. against the applicant and husband of the applicant under Sections 406, 504, 506 I.P.C. Later on Investigating Officer on the basis of oral evidence of wife of the complainant- Anuradha Kaushik, who was Vice Principal and on the basis of documentary evidence filed charge sheet against the applicant and co-accused under Sections 406, 504, 506, 420, 467, 468, 471 I.P.C. Husband of the applicant has already been released on bail. A civil dispute has been wrongly and illegally converted into a criminal offence. If there was any dispute of salary the informant or his wife- Anuradha Kaushik, who was Vice Principal of Vibgyour Public School and now has resigned from the post of Vice Principal, may approach to civil court for recovery of salary but it was not done by them rather they opted to launched a criminal prosecution against the applicant due to ulterior motive. The allegation against the applicant in the F.I.R. is that seven months' salary of the informant's wife was withheld by the school without assigning any cogent reason. Learned counsel for the applicant submits that as Anuradha Kaushik has not completed her duty till May, 2020, therefore, her remaining salary has not disbursed to her. Learned counsel for the applicant further submitted that as Anuradha Kaushik, wife of the first informant, has not deposited the fees collected by the students in the school account and she has also manipulated the marks obtained by his son, namely, Shivansh Kaushik, who is students of class 9th. The allegation of the applicant for not depositing the salary for seven months is totally false, as only two vouchers to have been disputed. Only it is reported dated 15.7.2021 that signatures of Smt. Anuradha Kaushik and her husband (one voucher each) is not tallied on two vouchers only. However, it is made clear from the facts and circumstances that Smt. Anuradha Kaushik received remaining salaries except two months. The allegation against the applicant is also that an account has been opened by the applicant in the name of Anuradha without her knowledge. This allegation is totally false as the mobile number which was linked with the said account has been provided by Anuradha Kaushik.

Further submission is that the applicant shall fully cooperate with the investigation. After investigation charge sheet has been submitted by the Investigating Officer under Section 173 (2) Cr.P.C., therefore no need of custodial interrogation of the applicant, hence, the applicant may be enlarged on anticipatory bail till conclusion of trial and he is ready to cooperate with the trial. The applicant has no previous criminal history. If the applicant is granted anticipatory bail, he will never misuse the same. In support of his submission, learned counsel for the applicants has relied upon the judgement of Hon'ble Apex Court in the case of Aman Preet Singh vs. C.B.I. through Director, AIR 2021 Supreme Court 4154.

Learned Additional Government Advocate and Sri Geetam Singh, learned counsel for the first informant have vehemently opposed the prayer for anticipatory bail to the applicant.

Learned counsel for the first informant submits that an account has been opened by the applicant without the knowledge of Anuradha Kaushik and so many vouchers have been disbursed by the applicant by using forged signature of Anuradha Kaushik with the collusion of officials of bank. Learned counsel for the first informant submits that the husband of applicant- Vivek Tyagi and the applicant has filed Application under Section 482 Cr.P.C. No. 8619 of 2022, which was dismissed on 14.7.2022 and it is also directed " however, considering the fact that applicant No. 2 Smt. Nishu Tyagi is a lady, therefore, it is directed that both the Courts below shall decide the bail application of applicant No. 2 on the same day considering the provisions contained in proviso to Section 437 Cr. P. C." Therefore, learned counsel for the first informant submits that the applicant may approach court below by filing bail application under Section 437 Cr.P.C.

I have considered the rival submissions advanced by learned counsel for the parties and perused the entire material available on record.

The Hon'ble Supreme Court in the case of Aman Preet Singh (Supra), the Court has observed as under:

"10. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

11. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

In Aman Preet Singh (supra), the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, I am of the opinion that it is a fit case for grant of bail to the applicant.

Accordingly, the anticipatory bail application is hereby allowed.

Let the applicant- Smt Nishu Tyagi be released on bail by the trial Court till conclusion of trial on furnishing a personal bond and, two sureties each in the like amount to the satisfaction of the trial Court concerned with the following conditions:

(i) The applicant shall file an undertaking to the effect that the applicant 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;

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

(iii) In case, the applicant misuses the liberty of bail and in order to secure his/her 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 the applicant in accordance with law, under Section 174-A of the Indian Penal Code; and

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of their bail and proceed against them in accordance with law.

Order Date :- 3.8.2022

Anuj Singh