Bharat Singh vs State Of U.P. Thru.Prin. Secy. ...
2022 Latest Caselaw 19287 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 570 of 2022
 
Applicant :- Bharat Singh
 
Opposite Party :- State Of U.P. Thru.Prin. Secy. Home And Another
 
Counsel for Applicant :- Dilip Kumar Pandey,Rohitash Kumar Singh
 
Counsel for Opposite Party :- G.A.,Rajendra Prasad Sharma
 

 
Hon'ble Sanjay Kumar Singh,J.

Case called out in the revised list.

None appears on behalf of the applicant to press this application, whereas learned A.G.A. on behalf of the State and Mr. Rajendra Prasad Sharma, learned counsel for the complainant/opposite party no.2 are present.

This Criminal Misc. Anticipatory Bail Application under section 438 Cr.P.C. has been moved by the applicant after rejecting his anticipatory bail application vide order dated 5.4.2022 by learned Sessions Judge, Raebareli seeking Anticipatory Bail in Case No.7770 of 2021, Crime No.233 of 2021, Under sections 419, 420, 467, 468, 471 I.P.C., Police Station Maharajganj, District Raebareli.

The matter is pending since April, 2022. Perusal of order sheet shows that after granting interim anticipatory bail order dated 20.04.2022, the case is being adjourned on the pretext of one or another whereas in view of provisions of sub-Section (5) of Section 438 Cr.P.C. of the State Amendment vide U.P. Act No. 4 of 2019, the anticipatory bail application under sub-Section (1) of Section 438 Cr.P.C. has to be disposed of within 30 days.

In view of the above, this Court proceeds to decide the case on its merits.

On 20.04.2022, following order was passed by the coordinate Bench of this Court:-

"Heard Sri Dilip Kumar Pandey, learned counsel for the applicant, Sri Vinay Kumar Sahi, learned AGA for the State and perused the material available on record.

The present anticipatory bail application has been filed on behalf of the applicant in Case No.7770 of 2021, Case Crime No.233 of 2021, under Sections 419, 420, 467, 468 and 471 IPC, Police Station Maharajganj, District Raibareli, with a prayer to enlarge him on anticipatory bail.

As per prosecution story, the applicant is said to have got the title of the land in question transferred in his name on the basis of a fake unregistered will.

Learned counsel for the applicant has stated that the land has been mutated in his name and there is an appeal pending before the Deputy Director of Consolidation and the proceedings have been stayed vide order dated 31.03.2003. Learned counsel for the applicant has further stated that the allegations of taking two loans cannot be substantiated against the applicant as he had taken Rs.8,00,000/- from United Bank of India and after obtaining no objection certificate from it, had taken another loan of Rs.15,98,000/- from the same bank. Learned counsel for the applicant has stated that the applicant has co-operated with the investigation and the charge-sheet has already been filed against him. There is no likelihood of absconding the accused-applicant. Learned counsel for the applicant undertakes that he will cooperate in the trial failing which the State can move appropriate application for vacation of the interim protection.

Per contra, Sri Vinay Kumar Sahi, learned A.G.A. has opposed the prayer for grant of anticipatory bail but unable to dispute the submissions raised by the learned counsel for the applicant.

Matter requires consideration.

Learned AGA is granted three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.

List this case on 29.08.2022 in the additional cause list.

On due consideration to the arguments advance by learned counsel for the applicant as well as learned A.G.A. and considering the nature of accusations and antecedents of the applicant, the applicant, as an interim measure, is liable to be enlarged on anticipatory bail in view of the Constitution Bench judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98". The future contingencies regarding the anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

In the event of arrest, the accused-applicant- Bharat Singh shall be released forthwith in the aforesaid case crime (supra) on interim anticipatory bail on furnishing a personal bond of Rs.50,000/- and two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned on the following conditions:-

(i) the applicant shall make himself available for interrogation as and when required;

(ii) 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; and

(iii) the applicant shall not leave India without the previous permission of the Court.

It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial or deciding the regular bail application. "

On 9.11.2022, when the matter was earlier heard it was pointed out by learned counsel for the applicant that the applicant has obtained the aforesaid interim order dated 20.04.2022 concealing the material facts and his criminal history. After hearing the counsel for the parties, following order was passed:

"On the matter being taken up, learned counsel for the applicant prays for adjournment of the case which has been vehemently opposed by learned counsel for the complainant/opposite party no. 2 by contending that in this case, charge-sheet has already been submitted on 16.03.2021 and trial of the applicant is going on. The interim anticipatory bail to the applicant has been granted by the coordinate Bench off this Court vide order dated 20.04.2022 under misconception that the matter is under investigation. It is also pointed out that such interim anticipatory bail order dated 20.04.2022 has been obtained by the applicant by concealing the material facts as well as his criminal history. In this regard, it is pointed out that the applicant in paragraph 2 of the affidavit has mentioned that he has no criminal history to his credit at all whereas the applicant has criminal history of nine cases including the present case and, out of which, in five cases, charge-sheet has been submitted against the applicant. He has also raised an objection about maintainability of the present anticipatory bail application in the light of the judgment of this Court passed in the case of Shivam Mishra Vs. State of U.P. and another, (2021) 4 All LJ 132, wherein it has been held that if charge-sheet has been challenged by the accused under Section 482 Cr.P.C., the application under Section 438 Cr.P.C. is not maintainable.

In response, learned counsel for the applicant could not dispute the aforesaid fact as argued on behalf of the complainant.

In view of the above, this Court does not find any good ground to extend the order dated 20.04.2022.

List this case on 18.11.2022. "

Having heard the learned A.G.A. and learned counsel for the complainant, I find that there is nothing on record to rebut the submissions of learned counsel for the complainant/opposite party no. 2 as noted in the order dated 09.11.2022.

In view of the above, this Court is of the considered opinion that the applicant has not approached this Court with clean hand and filed this application suppressing his criminal history, which is one of the necessary ingredients for considering prayer for anticipatory bail, therefore, he does not deserve any indulgence by this Court. The courts of law are meant for imparting justice between the parties. One, who comes to the court, must come with clean hands and no material facts should be concealed. I am constrained to hold that more often the process of the court is being abused by unscrupulous litigants to achieve their nefarious design. It is well settled that such a litigants, who has approached the court suppressing the material facts can be summarily thrown out at any stage of the litigation. The judicial process cannot become an instrument of oppression or abuse or a means in the process of the Court to subvert justice, for the reason that the Court exercises its jurisdiction, only in furtherance of justice.

Accordingly the interim anticipatory bail order dated 20.04.2022 is hereby vacated and this application under section 438 Cr.P.C. is rejected.

It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case.

Order Date :- 1.12.2022

Ram.