Awadh Sharan Mishra vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 19116 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. - 1973 of 2022
 

 
Applicant :- Awadh Sharan Mishra
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another
 
Counsel for Applicant :- Praveen Tripathi,Shakti Krishna Chaube
 
Counsel for Opposite Party :- G.A.,Hemant Kumar Mishra
 

 
Hon'ble Sanjay Kumar Singh,J.

Heard Mr. Praveen Tripathi, learned counsel for the applicant, Mr. S.P. Tiwari, learned Additional Government Advocate 1st for the State, Mr. Hemant Kumar Mishra, learned counsel appearing on behalf of the complainant/opposite party no. 2 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 20.10.2022 passed by learned Special Judge SC/ST Act, Gonda seeking Anticipatory Bail in Case Crime No. 269 of 2022, under sections 420, 467, 468, 471 and 409 IPC, Police Station Mankapur, District Gonda.

On the matter being taken up, learned counsel for the applicant has filed a supplementary affidavit, which is taken on record.

As per the prosecution case in brief, informant Vijay Pratap Singh who is Officiating Principal of A.P.E. College, Mankapur, Gonda has lodged an FIR on 27.07.2022 against Awadh Sharan Mishra (present applicant) and Pradeep Kumar for the offence under Sections 420, 467, 468, 471 and 409 IPC making allegation inter-alia that the applicant was posted on the post of principal in A.P.E. College, Mankapur, Gonda from May 2003 to July 2020. One Smt. Sona Devi who was sweeper in the college was absent from her duties from March, 2003 to June, 2003, therefore, the applicant has made an appointment of co-accused Pradeep Kumar on the post of sweeper on 07.08.2004 in place of Smt. Sona Devi without terminating her service and without following due procedure of law. Thereafter co-accused Pradeep Kumar filed a writ petition No. 913 (S/S) of 2005 seeking his regularization and direction for payment of his salary, in which initially interim order was granted on 09.02.2005 and he was allowed monthly salary with effect from 01.01.2005 till permanent incumbent joins the post but later on, the said writ petition had been dismissed vide order dated 21.11.2006 but applicant in collusion with co-accused Pradeep Kumar got his salary released from State treasury for last 14-15 years.

It is argued by the learned counsel for the applicant that since Smt. Sona Devi was working as a sweeper and she without giving any information to anybody became absent for long time, therefore applicant in order to perform the regular work of sweeping etc. in the college sent a letter dated 08.01.2004 to District Inspector of School, Gonda (hereinafter referred to as 'D.I.O.S.') for according prior sanction of appointment on the post of sweeper but when after a considerable period of time no sanction was granted by D.I.O.S. on the application dated 08.01.2004 of the applicant up to 29.04.2004, the applicant started the process and appointed co-accused Pradeep Kumar on the post of sweeper in place of Sona Devi and appointment was made on 07.08.2004. Referring the judgment dated 30.05.2018 of this Court in the case of (Mukhtar Yadava and Ors. Vs. State of U.P. and Ors.) passed in Writ A No. 69276 of 2005, it is argued that it has been settled by this Court that in case application for approval is neither allowed nor rejected by the authority concerned, the same shall be presumed as a deemed approval after an expiry of a reasonable period. The writ petition No. 913 (S/S) of 2005 filed by the co-accused Pradeep Kumar has not been correctly decided. Applicant has no criminal history to his credit. Pursuant to F.I.R. of this case, the applicant has apprehension of imminent arrest. Lastly, it is submitted that in case, applicant is granted anticipatory bail, he would not misuse the liberty and will co-operate with the investigation of this case.

Learned Additional Government Advocate 1st for the State of U.P., who has accepted notice of this case on 02.11.2022 as well as learned counsel appearing on behalf of the complainant opposed the prayer for granting anticipatory bail to the applicant by contending that aforesaid Writ Petition No. 913 (S/S) of 2005 filed by co-accused Pradeep Kumar had already been dismissed vide order dated 21.11.2006 with the observation that "it appears that the appointment has been got by the petitioner under a planned scheme with his mother. Had Smt. Sona Devi retired from service or her post had become vacant for any other reason, appointment on the post could have been made in accordance with law on the post. It does not appear from records that any action has been taken against Smt. Sona Devi in pursuance of notice date 08.04.2004. It rather is apparent from record that after appointing the petitioner allegedly in place of his mother, the D.I.O.S. has been informed about this fact by letter dated 7.8.2004 without in fact there being any vacancy."

It is also pointed out that the said order has attained finality as the same has not been challenged by co-accused Pradeep Kumar, therefore, as on date, it cannot be said that the said order dated 21.11.2006 has been illegally passed.

Having heard the learned counsel for the parties, I find that there is no dispute about the fact that the applicant without any vacancy and prior approval of D.I.O.S. has started the process of appointment of co-accused Pradeep Kumar. It is also not disputed that if Smt. Sona Devi became absent from her duties, no action has been taken by the applicant against her. The validity of appointment of co-accused Pradeep Kumar has already been considered and tested by this Court, as noted above and the order dated 21.11.2006 dismissing the Writ petition of the Pradeep Kumar has attained finality. Co-accused Pradeep Kumar was paid salary from State treasury for last 14-15 years even after dismissal of his writ petition. So far as the judgment in the case of 'Mukhtar Yadava' (Supra) relaid upon by the applicant is concerned, I find that the same is distinguishable on the facts of the present case as in the said case, on account of retirement of four Class-IV employees, four vacancies had vacant while in the present case, no such vacancy had vacant, therefore, the said judgment is not applicable to the facts of the present case. This Court is also of the view that every case turn on its own facts and even a little significant change in the facts of the case may make a big difference in conclusion of two cases.

Object of section 438 of the Code of Criminal Procedure, is that a person should not be unnecessarily harassed or humiliated in order to satisfy personal vendetta or grudge of complainant or any other person operating the things directly or from behind the curtains. It is well settled that discretionary power conferred by the legislature on this court can-not be put in a straitjacket formula, but such discretionary power either grant or refusal of anticipatory bail has to be exercised carefully in appropriate cases with circumspection on the basis of the available material after evaluating the facts of the particular case and considering other relevant factors (nature and gravity of accusation, role attributed to accused, conduct of accused, criminal antecedents, possibility of the applicant to flee from Justice , apprehension of tampering of the witnesses or threat to the complainant, impact of grant of anticipatory bail in investigation, trial or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.

In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties, taking into consideration the role assigned to the applicant as per prosecution case, gravity and nature of accusation as well as reasons mentioned above, this court is of the view that no case for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of applicant.

Accordingly 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 :- 29.11.2022

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