Allahabad High Court
Mayoor Ahuja (Second ... vs State Of U.P Thru. Prin. Secy. Home ... on 26 May, 2022
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 783 of 2022
Applicant :- Mayoor Ahuja (Second Anticipatory Bail)
Opposite Party :- State Of U.P Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Nandita Bharti
Counsel for Opposite Party :- G.A.
Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Vishwajeet Singh, learned Senior Advocate assisted by Ms. Nandita Bharati, learned counsel for the applicant and Sri Vinod Kumar Shahi, learned Additional Advocate General, U.P. assisted by Sri Santosh Mishra, learned Additional Government Advocate-I for the State.
By means of this second anticipatory bail application, the applicant has shown his apprehension of arrest in Case Crime No.3 of 2021, under Section 60 (2) of United Provinces Excise Act, 1910 along with Sections 420, 467, 468, 471, 477-A & 120-B I.P.C., Section 66 of I.T. Act and Section 7/13 of Prevention of Corruption Act, Police Station-S.I.T. (Special Investigation Team), Lucknow.
This is the second application for anticipatory bail. The first application for anticipatory bail bearing Criminal Misc. Anticipatory Bail Application (U/S 438 Cr.P.C.) No.110 of 2022 has been disposed of by this Court vide order dated 28.01.2022, which reads as under:-
Heard Sri Vishwajeet Singh, learned Senior Advocate, assisted by Sri Pranshu Agrawal, learned counsel for the applicant and Sri V.K. Shahi, learned Additional Advocate General of U.P. assisted by Sri Santosh Mishra, learned AGA-I for the State through video conferencing.
By means of this anticipatory bail application, the applicant has prayed that he may be granted anticipatory bail in case he is arrested in FIR/ Crime No.3 of 2021, under Section 60 of United Provinces Excise Act, 1910 along with added/ merged Sections 420/467/468/471/477-A IPC, Police Station - S.I.T. (Special Investigation Team), Lucknow.
Sri Vishwajeet Singh, learned Senior Advocate, has submitted that the present applicant is neither named in the FIR nor in the charge sheet. He has submitted that one accused of the FIR has allegedly informed the investigating agency that the goods in question has been stored in the godown of the applicant. On the basis of aforesaid statement, the present applicant was summoned but he could not appear before the investigating agency for the reason that his parents were suffering from COVID-19 and he was to look after them. Since the applicant could not appear, so the warrant has been issued against him by the investigating agency and at that point of time, the petitioner/ applicant was himself suffering from COVID-19. However, he has now been recovered from COVID-19 and he is in a condition to cooperate with the investigating agency. He has further submitted that the present applicant has got his bonafide submissions and he is very much sure that he shall apprise all the facts and circumstances, which are within his knowledge to the investigating agency to convince that he is innocent person.
Sri Vishwajeet Singh, learned Senior Advocate, has drawn attention of this Court towards Annexure No.5 to the application, which is an order dated 25.3.2021 passed by the Division Bench of this Court in Writ Tax No.261 of 2021, Mayoor Ahuja Vs. State of U.P. and 2 Others, whereby the present petitioner/ applicant had assailed the show cause notice and suspension order being issued against him and in that case, this Court was pleased to observe that since the provisions indicated in the suspension order are compoundable in nature, therefore, the competent authority may act upon strictly in accordance with law as the petitioner had already submitted an application for compounding for the breaches shown in such suspension order.
Sri Singh has also submitted that the named accused in such FIR, namely, Kamal Daniel, Mangeram Tyagi, Arvind Kumar, Ashok Kumar Kashyap, Ashwani Upadhyay, Sanjay Kumar Sharma alias Sanjay Kumar, Harisaran Tiwari and Satyabhan Sharma have been granted anticipatory/ regular bail. However, the owner of the Company, namely, Pranay Aneja was initially granted anticipatory bail but such anticipatory bail order was vacated, thereafter he applied for regular bail and such regular bail of Sri Pranay Aneja was rejected and presently, he is in judicial custody.
Per contra, Sri V.K. Shahi, learned Additional Advocate General of U.P. has opposed the prayer for anticipatory bail application by submitting that since the present applicant is neither named in the FIR nor in the charge sheet, therefore, there may not be any reasonable apprehension of arrest. Since he has been named by two persons, namely, Jai Bhagwan and Pranay Aneja, therefore, the investigating agency is conducting investigation wherein his cooperation is required. Since the present petitioner/ applicant did not appear before the investigating agency for the purposes of investigation, therefore, warrant has been issued against him. Sri Shahi has submitted that had the present applicant been cooperated with the investigating agency, no warrant would have been issued. Sri Shahi has, however, submitted that if the present applicant could not appear before the investigating agency for the reason that earlier his parents were suffering from COVID-19 and later on, he himself was suffering from COVID-19, then he should now appear before the investigating agency to participate and cooperate in the investigation, if as per his version, he is in a position to appear before the investigating agency. Sri Shahi has submitted that the investigating agency is fully aware about the law that unless and until the arrest of any person is very much required, the exercise of arrest is normally avoided and it is ensured that the person concerned would be appearing before the investigating agency for the purposes of investigation. Therefore, as per Sri Shahi, the apprehension of the applicant of arrest is unreasonable apprehension and instead of approaching this Court for anticipatory bail, he should appear before the investigating agency to cooperate with the investigation, therefore, this anticipatory bail application is misconceived.
Having heard learned counsel for the parties and having perused the material available on record, I find that the apprehension of arrest of the applicant can be understood as warrant has been issued against him by the investigating agency. The reason to issue the warrant is that the applicant did not appear before the investigating agency. Since the reason to not appear before the investigating agency is bonafide as his parents and he himself were suffering from COVID-19 at that point of time, therefore, I am of the considered view that the petitioner/ applicant should cooperate with the investigating agency so that the investigation could be conducted and concluded to its logical end. The petitioner/ applicant shall present before the investigating agency on the date fixed by such investigating agency and he shall cooperate with the investigation to the fullest. He may demonstrate his bonafide to the investigating agency. It is needless to say that the investigating agency shall conduct and conclude the investigation as per law. It is provided that if the petitioner/ applicant cooperates with the investigating agency properly and puts his stand, the investigating agency shall consider the same as per law and no unnecessary coercive action may be taken against him unless it is required under the law as per the settled proposition by the Hon'ble Apex Court in catena of judgments.
The instant anticipatory bail application is disposed of accordingly."
As per office report dated 26.05.2022, this anticipatory bail application has been put up before me for the reason that I have decided the first bail application of the present applicant in the same crime case. The office report reads as under:-
"This is a subsequent Anticipatory Bail Application. Since the first Bail (Anticipatory) Application was decided by the Hon'ble Mr. Justice Rajesh Singh Chauhan. Considering it to be a tied-up matter, this was listed before the Hon'ble Mr. Justice Rajesh Singh Chauhan."
Sri Vishwajeet Singh, learned Senior Advocate for the applicant has submitted that after the order dated 28.01.2022 being passed, the present applicant has been co-operating with the investigation properly. He appeared before the Investigating Agency on 03.02.022, 07.02.2022, 11.02.2022, 08.03.2022 and 11.03.2022. On 11.02.2022 his statement was recorded. On 08.03.2022, he was called for the purpose of inquiry and he appeared on 08.03.2022. He preferred letter dated 11.03.2022 to the Investigating Team apprising the informations which were available with him.
As per Sri Singh, learned Senior Advocate, despite the aforesaid co-operation being extended by the present applicant one notice dated 24.03.2022 (Annexure No.2) under Sections 91/160 Cr.P.C. has been issued to the present applicant to the effect that the present applicant is unable to get his one employee, namely, Kuldeep appeared before the Investigating Agency, therefore, it would be presumed that he is not co-operating with the investigation. Sri Singh has submitted that the aforesaid notice itself provides that the applicant has categorically replied the Investigating Agency that the aforesaid person, namely, Kuldeep has never been his employee. He does not know his whereabouts. However, he has tried his level best to locate such person but could not locate him.
As per Sri Singh, when the Investigating Agency is directing the applicant to get one person, Kuldeep, appeared with whom the present applicant has got no connection of any kind whatsoever as to how such person could be presented before the Investigating Agency. Replying to the aforesaid notice, the present applicant has submitted one affidavit before the Investigating Agency, which has been annexed as Annexure No.3, wherein the present applicant has stated on affidavit in para-5 that he does not know any person in the name of Kuldeep and he has never been his employee.
Sri Singh has further submitted that information of three persons were required including this Kuldeep and the information of two persons has been provided by the applicant to the Investigating Agency. Therefore, Sri Singh has submitted that he is unable to comprehend as to how the present applicant is not co-operating with the Investigating Agency. Therefore, the present applicant has apprehended from this notice wherein it has been indicated that the present applicant is not co-operating with the Investigating Agency and as per earlier protection provided by this Court it has been made clear that if the applicant does not co-operate with the investigation any appropriate coercive action may be taken against him. Therefore, in the garb of such observation of notice the present applicant is not feeling safe even during investigation.
On that, Sri Vinod Kumar Shahi, learned Additional Advocate General has submitted that the present second application for anticipatory bail is premature so it is not maintainable. When the present applicant has already been protected vide order dated 28.01.2022, he should not be apprehended. He has further submitted that investigation is still going on and unless and until any incriminating material / evidence suggesting the culpability of the present applicant is not received to the Investigating Agency, no coercive action / step may be taken. However, after filing the charge-sheet any appropriate action, if required under the law, may be taken.
So far as the notice dated 24.03.2022 is concerned, Sri Shahi has submitted that the reply so given by the present applicant on affidavit is being considered and if it is found that the aforesaid reply of the present applicant, which has been filed on affidavit, is false and beyond the material available with the Investigating Agency, the consequence thereof will have to be faced by the applicant. He has further submitted that the Investigating Agency has got utmost faith and respect towards the majesty of law, particularly the order of Court, therefore, no efforts have been taken to arrest the present applicant after order being passed by this Court on 28.01.2022.
Therefore, Sri Shahi has submitted that the present second application for anticipatory bail is misconceived and the same may be rejected.
Having heard learned counsel for the parties and having perused the material available on record, I am of the considered opinion that if any order has been passed by this Court protecting the liberty of any individual and some directions have been issued, the authority to whom the order has been addressed shall abide by such directions in its letter and spirit. However, it is also made clear that in the garb of such protection being given by this Court if those directions are not followed by the petitioner/ applicant, the consequence thereof would have to face by the petitioner/ applicant also.
In the present case, since reply of the present applicant which has been submitted on affidavit is being scrutinized, therefore, I don't find any reason to pass any order protecting liberty of the present applicant further inasmuch as his liberty has already been protected by earlier order dated 28.01.2022.
It would not be out of place to indicate here that considering the factum of liberty of the citizens the Apex Court in catena of cases, including the case in re:Siddharth vs. State of Uttar Pradesh and another reported in (2022) 1 SCC 676, has observed that if any person, more particularly the suspected person, co-operates with the investigation till filing of the charge-sheet and if the charge-sheet is filed against his/her, his/ her arrest would not be mandatory and his/ her liberty may be secured after taking appropriate bond/ sureties etc. so as to ensure his presence and co-operation with further proceedings.
Accordingly, the present second application for anticipatory bail is consigned to the records.
Order Date :- 26.5.2022 [Rajesh Singh Chauhan,J.]
Suresh/
