Allahabad High Court
Shubham Rastogi vs State Of U.P. Thru. Prin. Secy. ... on 1 December, 2022
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 691 of 2022
Applicant :- Shubham Rastogi
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Hasan Agha Jafri,Pankaj Gupta
Counsel for Opposite Party :- G.A.,Prashant Agarwal
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
This Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicant after rejecting his anticipatory bail application by the order dated 11.04.2022 passed by learned Special Judge, P.C. Act-6/Additional Sessions Judge, Lucknow seeking Anticipatory Bail in case crime no. 29 of 2018, under sections 420, 406, 504, 506, 376, 511, 120-B IPC, Police Station Thakurganj, District Lucknow.
As per the prosecution case in brief, complainant-Smt. Nishi Shukla has lodged an FIR on 10.01.2018 against four persons namely Sheela Rastogi, Shubham Rastogi, Amarnath Rastogi, Dinu Rastogi and one unknown person making allegation inter-alia that they, in collusion with each other, extracted total amount of Rs. 19,00,000/- from her on the pretext of running a fitness health club along with her in partnership.
On 28.11.2022, following order was passed:-
"During the course of argument apart from other submissions, learned counsel for the applicant referring the order dated 18.09.2021 of learned Additional Chief Judicial Magistrate, Lucknow filed as annexure no. 9 to the affidavit pointed out that the investigating officer is not conducting fair investigation. The investigating officer was not accepting the documents and material evidences provided by the applicant in his defence including CCTV footage on record, therefore, the applicant has no option left to move an appropriate application before the concerned learned Magistrate praying therein to direct the investigating officer to include the documents (physical and digital) of the applicant in the investigation. The said application has been allowed vide order dated 18.09.2021. While submitting that the fair investigation is a legal right of the accused-applicant, he relied upon paragraph no. 8 of the judgment dated 11.08.2021 of this Court passed in Criminal Misc. Bail Application No. 22430 of 2021 (Bulle vs. State of U.P.).
List this case on 01.12.2022.
On the next date, investigating officer of this case shall appear in person and shall apprise learned A.G.A. about the present status of the investigation as well as compliance of order dated 18.09.2021."
Pursuant to order dated 28.11.2022, Sub Inspector Shashi Prakash Singh, investigating officer of this case is personally present along with case diary.
Learned A.G.A., upon instructions from the investigating officer, has submitted that in this case, application of the applicant was allowed vide order dated 18.09.2021 by the Additional Chief Judicial Magistrate, concerned. Thereafter, the compact disc of CCTV footage was forwarded by the Court of ACJM, CBI, AP to Station House Officer of Police Station Thakurganj, District Lucknow for taking into consideration in the investigation, which was handed over to the investigating officer. Thereafter, investigating officer conducted the investigation in the light of CCTV footage and also made entry of the same in supplementary case diary no. 22, dated 25.09.2021. Much emphasis has been given by learned A.G.A. by contending that in this case, non-bailable warrant was already issued against the applicant on 19.02.2018 and thereafter process under Section 82 Cr.P.C. had also been issued on 27.06.2018 but the applicant did not appear before the investigating officer and is not cooperating with the investigation. The instant anticipatory bail application has been moved by the applicant on 28.04.2022 suppressing the material facts.
Learned counsel for the applicant submits that on 15.01.2017, complainant along with her husband came to the shop of his grand-father who was familiar with them and showing their immediate need, requested to give a loan of Rs. 25,00,000/- against their ornaments. Considering their request, an amount of Rs. 19,00,000/- had been given by the applicant's grand-father to the complainant. Subsequently, it was found that the value of complainant's ornaments was less than Rs. 19,00,000/- therefore complainant was called and her ornaments were returned back. Thereafter, two cheques of Rs. 5,00,000/- each of Axis Bank were given by the complainant and she also transferred Rs. 3,00,000/- in saving bank account of the applicant on 18.07.2017 through RTGS. So far as the remaining amount is concerned, the complainant promised to pay the same very soon. When Amarnath Rastogi, grand-father of the applicant requested the complainant to return the rest of the amount, she lodged the FIR on 10.01.2018.
Having heard the learned counsel for the parties, I find that the submission of learned counsel for the applicant is relating to defence of applicant which is a matter of investigation. The submissions of learned A.G.A., as noted above, has not been disputed on behalf of the applicant. The investigation is going on. As on date, accepting the prosecution case as it is prima-facie offence is made out against the applicant, therefore, under the facts of the case, I find no good ground to exercise my discretionary power under Section 438 Cr.P.C. in favour of the applicant.
Accordingly, the instant anticipatory bail application is dismissed.
The personal appearance of the investigating officer is hereby dispensed with.
Order Date :- 1.12.2022
saurabh
