Hari Mohan Niranjan vs State Of U.P. And Another
2022 Latest Caselaw 21906 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 14534 of 2021
 
Applicant :- Hari Mohan Niranjan
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Lakshman Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

On 1.10.2021, this Court passed the following order:-

"1. Heard learned counsel for the applicant, learned AGA and perused the record.

2. The instant application is being moved by the applicant invoking the powers of Section 438 Cr.P.C. that he has every reason to believe that he may be arrested on the accusation of having committed a non-bailable offence in connection with Case Crime No.845 of 2020, under Sections 420, 406 IPC, Police Station-Kotwali, District-Jalaun.

3. From the record, it is evident that the applicant has approached this Court straightaway without getting his anticipatory bail rejected from the court of sessions.

4. Learned counsel for the applicant has drawn attention of the Court to Clause-7 of Section 438 Cr.P.C. (UP Act No.4 of 2019), which reads thus:

"(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."

5. After interpreting the aforesaid clause, it is clear that the Legislature in its own wisdom bestowed two avenues upon the accused with a rider that if the accused has chosen to come to the High Court straightaway, then he would not be relegated back to exhaust his remedy before the Court of Session first. In this regard, learned counsel for the applicant has placed reliance upon the Full Bench judgment of this Court in the case of Ankit Bharti and others vs. State of UP and another [2020 (3) ADJ 575], in which the Bench has directed to spell out the extraordinary and special reasons for coming to the High Court. After perusal of those pleadings/reasons in this regard, this Court is satisfied that the reasons mentioned therein are quite convincing to entertain the present anticipatory bail application before this Court itself.

6. Prior notice of this bail application was served in the office of Government Advocate and as per Chapter-XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc.Anticipatory Bail Application u/S 438 Cr.P.C. No.8072 of 2020 (Govind Mishra @ Chhotu vs. State of UP), hence, this anticipatory bail application is being heard. Grant of further time to the learned AGA as per Section 438(3) Cr.P.C. (UP Amendment) is not required.

7. It has been contended by the learned counsel for the applicant that the applicant has got no criminal antecedents and he has not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced by learned counsel for the applicant on behalf of the applicant that he would render all requisite co-operation and assistance in the process of law and with the investigating agency and shall not create any hindrance to reach to its logical conclusion and shall not flee from the course of justice.

8. Learned counsel for the applicant has strenuously argued that the applicant has been made target just to besmirch his reputation and belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicant to demonstrate the falsity of the accusation made in the FIR against the applicant by the informant. Learned counsel for the applicant has also relied upon the judgments in the cases of Arnesh Kumar vs. State of Bihar and another, [(2014) 8 SCC 273]; Joginder Kumar vs. State of UP & others [(1994) 4 SCC 260] and Sanaul Haque vs. State of UP & another [2008 CrLJ 1998], to buttress his contentions.

9. In this backdrop of legal as well as factual proposition, learned counsel for the applicant has submitted that Mohan Singh has lodged a first information report against Ashish Niranjan and Hari Mohan Niranjan and two others. Contention raised by learned counsel for the applicant is that Hari Mohan Niranjan is father of Ashish Niranjan who projected himself as Managing Director of Jivan Bharti Developers, India Limited. It has further been submitted that applicant has got no concern with the internal matter of the alleged company. Applicant has been falsely implicated in this case by Mohan Singh. The case of Ashish Niranjan is clearly distinguishable from the case of present applicant. There is every reason or apprehension that the applicant would be arrested in connection of the aforesaid case. For convenient, raised by learned counsel for the applicant that he is ready to co-operate with investigation provided his liberty remains protected.

10. Per contra, learned AGA has vehemently opposed the anticipatory bail application by mentioning that though the applicant has got no criminal antecedents, but there is nothing on record to satisfy that the police personnel are after the applicant to arrest him. The alleged apprehension on behalf of applicant is imaginary and unfounded one. Learned AGA has also submitted that in view of the seriousness of the allegations made in the FIR, the applicant is not entitled for any relaxation from this Court.

11. After the close scrutiny of Section 438 Cr.P.C. (UP Act No.4 of 2019) and its relevant clauses, the Court is satisfied that the applicant has made out the case for interim order protecting the liberty of applicant in connection with aforesaid case crime pending investigation.

12. Without expressing any opinion upon ultimate merits of the case either ways, which may be adversely affect the investigation and subsequent stage of the case, the Court directs that in the even of arrest of the applicant in aforesaid case crime, he shall be released on bail on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the Arresting Officer till the submission of report under Section 173(2) Cr.P.C. by the Investigating Officer with the condition that :-

(i) the applicant shall make himself available for the interrogation by the police as and when required. The Investigating Officer of the case would give 48 hours prior notice or telephonically inform the concerned accused-applicant to remain available to him for the purpose of interrogation and the accused-applicant is obliged to abide by such directions.

(ii) the applicant shall not directly or indirectly make any inducement, threats or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.

(iii) the Investigating Officer of the case would make all necessary endeavour to gear up the investigation in utmost transparent and professional way and would try to conclude the same within a maximum period of 90 days. During this period, the accused-applicant would not leave the State of Uttar Pradesh without informing the Investigating Officer of the case and sharing his contact number.

(iv) in the event, the applicant is having his passport, he will have to surrender the same before the concerned SP/SSP of the District till the submission of report under Section 173(2) Cr.P.C.

13. In the event, the applicant breaches or attempts to breach any of the aforesaid conditions or wilfully violate above conditions or abstains himself from the investigation, it would be open for the Investigating Officer or the concerned authority to apply before the court of session for cancellation of interim protection and the court of session has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.

14. While entertaining the instant anticipatory bail application before this Court, there is no concrete material on record except the canvassed apprehension of the applicant on his arrest and the severity of accusation made in the FIR against him. After being satisfied on the limited material, the interest/liberty of the applicant is protected by this Court with aforesaid riders during the course of investigation, after recording its nascent satisfaction. However, continuance of instant interim protection or ultimate fate of instant application would be decided, subject to the counter affidavit filed by learned AGA and the material brought on record against the applicant during the investigation.

15. Learned AGA should file counter affidavit soon after submission of report under Section 173(2) Cr.P.C. or 90 days, whichever is earlier.

16. Life of the instant protection would continue till the submission of charge-sheet or 90 days, whichever is earlier.

17. List this anticipatory bail application after two months before appropriate Court".

Heard learned counsel for the applicant and learned Additional Government Advocate for the State.

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 his arrest in connection with Case Crime No.845 of 2021, under Sections 420, 406 IPC, Police Station-Kotwali, District-Jalaun.

Learned counsel for applicant has submitted that the applicant has been falsely implicated in this case and he has not committed any offence as alleged by the prosecution. The Investigating Officer without collecting cogent and credible evidence has filed charge sheet against the applicant in a routine manner on 25.9.2021. Later on cognizance order has also been issued against the applicant. Further submission is that the applicant fully cooperated with the investigation, hence, the applicant may be enlarged on anticipatory bail till conclusion of trial and he is ready to cooperate with the trial. 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 has vehemently opposed the prayer for anticipatory bail to the applicant.

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-Hari Mohan Niranjan 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 :- 20.12.2022

Anuj Singh