Ashwani Kumar Gupta vs State Of U.P.
2023 Latest Caselaw 11714 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 75
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2614 of 2022
 
Applicant :- Ashwani Kumar Gupta
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajrshi Gupta,Ashwani Kumar Gupta,Om Prakash Gupta,Rizwan Ahamad,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,...,Pankaj Kumar Shukla
 

 
Hon'ble Sanjay Kumar Singh,J.

Heard learned counsel for the applicant, learned Additional Government Advocate for the State of U.P. and perused the record.

This Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicant-Ashwani Kumar Gupta after rejecting his anticipatory bail application by the order dated 30.10.2021 passed by learned Additional Sessions Judge/Special Judge, Gorakhpur, seeking Anticipatory Bail in Case Crime No. 632 of 2019, under Sections 13(1)(b) and 13(2) of Prevention of Corruption Act, 1988, Police Station Kotwali Khalilabad, District Sant Kabir Nagar.

On 03.08.2022, this Court while granting ad-interim anticipatory bail to the applicant, has passed following order :-

"1-Heard Mr. Rakesh Pandey, learned senior counsel assisted by Mr. Om Prakash Gupta, learned counsel for the applicant, learned Additional Government Advocate for the State of U.P., Mr. Pankaj Kumar Shukla, learned counsel appearing on behalf of Abdul Rahman Khan and perused the record.

2-This Criminal Misc. Anticipatory Bail Application under section 438 Cr.P.C. has been moved by the applicant (Ashwani Kumar Gupta) after rejecting his anticipatory bail application by the order dated 30.10.2021 passed by Additional Sessions Judge / Special Judge, Gorakhpur, seeking Anticipatory Bail in case crime no. 632 of 2019, under section 13(1)(b) and 13(2) of Prevention of Corruption Act, 1988 Police Station Kotwali Khalilabad, District Sant Kabir Nagar.

3-At the outset, it is pointed out by the learned counsel for the applicant that this is third Anticipatory Bail Application of the applicant before this Court. The first Anticipatory Bail Application no. 14489 of applicant was dismissed as withdrawn on 23.9.2021 with liberty to approach before the concerned Court below. On filing the Anticipatory Bail Application before the Sessions Court, same has been rejected on 30.10.2021. Thereafter, applicant preferred his 2nd Anticipatory Bail Application No. 19226 of 2021 before this Court. Similarly, in another matter, Criminal Misc. Anticipatory Bail Application No. 9159 of 2021 of Anhilesh Kumar Gupta was also filed and in both the matters Mr. Dileep Kumar, Senior Advocate had to appear. Instructions were given to the office of Mr. Dileep Kumar, Senior Advocate, to withdraw the Anticipatory Bail Application No. 9159 of 2021 of Anhilesh Kumar Gupta but due to some mis-communication, instead of making a mention to withdraw the anticipatory bail application of Anhilesh Kumar Gupta, a mention was made by the assisting counsel to the Court to withdraw the second anticipatory bail application of the present applicant Ashwani Kumar Gupta, which was never intended to be withdrawn.

4-As per prosecution case in brief, Inspector-Arjun Yadav lodged first information report on 05.09.2019 at 13:27 hours against the applicant Ashwani Kumar Gupta at Police Station Khalilabad District Sant Kabir Nagar being F.I.R./Case Crime No. 632/2019 under Section 13(1)(b) and 13(2) of the Prevention of Corruption Act 1988 alleging inter alia that the Uttar Pradesh Administration Vigilance Department, Lucknow had directed an open inquiry to be conducted against the applicant and in the said inquiry, it has been disclosed that the applicant while being the Chairman of Nagar Panchayat Maghar District Sant Kabir Nagar and working as a public servant has made an income of Rs. 47,06,890/- and has spent Rs. 1,16,71,489/- and as such, there has been a discrepancy of Rs. 69,64,599/- in his income and earning and in this regard, no proper explanation has been given by the applicant.

5-It is argued by Mr. Rakesh Pandey, learned senior counsel appearing for the applicant that:-

i- the applicant was holding the post of Chairman of Nagar Panchayat of Maghar, from 7.6.2012 to 31.7.2017 and during this period, he has discharged his duties as a public servant to the utmost of his ability without any undue favour or prejudice.

ii-the impugned first information report has been lodged on the basis of false and frivolous complaint dated 17.02.2016 of one Abdul Rahman Khan addressed to Principal Secretary, UP Government, Lucknow, who claims himself to be a social worker. In the complaint, allegations have been levelled that the applicant has unexplained movable and immovable property by misusing his position as Chairman Nagar Panchayat. The said allegations were enquired into by the Committee of Sub Divisional Magistrate and Tehsildar, Khalilabad, Sant Kabir Nagar, in which the applicant duly participated and on 21.06.2016 provided documentary evidence in support of his defence, thereafter no further information was given to the applicant by the committee and he completed his tenure.

iii-it is pointed out that the first complaint had been lodged by Abdul Rahman Khan, in the year 2014. Since there was no legal evidence in support of allegations levelled in complaint, which was based on false and fabricated allegations, therefore, he moved an application dated 13.12.2014 to Sub Divisional Magistrate, Khalilabad for withdrawing his complaint.

iv-in the year 2017, Abdul Rahman Khan concealing the factum of the earlier complaint and the inquiry being set up has approached the High Court vide Civil Misc. Writ Petition No. 16204 of 2017 (Abdul Rahman Khan Vs. State of Uttar Pradesh & others) seeking direction to the concerned Government authorities to decide the representation dated 29.12.2016 and dated 12.12.2017 which he had filed in the Vigilance Commission and before the Director, Satarkata Adhisthan, P.V.C. 44 Vibhuti Khand Lucknow, against the applicant. The said petition was not entertained and was dismissed vide order dated 18.4.2017.

v- another Writ Petition being Criminal Misc. Writ Petition No. 28222 of 2017 with the same prayer as that of the earlier writ petition by has been moved by Abdul Rahman Khan to decide the representation on 29.12.2016, which has also been dismissed by this Court vide order dated 11.9.2019.

vi- much emphasis has been given by contending that when applicant came to know that a first information report dated 5.9.2019 has been lodged against him, he moved a representation to the Government as well as the higher police official, highlighting his grievance but neither his statement was recorded nor he was called by the Investigating Officer during investigation.

vii- applicant has a criminal antecedents of two cases being Case Crime No. 1123/2015, under sections 147, 148, 149, 153, 336, 435, 323, 427, 504 IPC P.S. Kotwali, Sant Kabir Nagar, in which Final Report No. 1 submitted on 12.2.2016 and Case Crime No. 2743/2017 under sections 147, 323, 504, 506 IPC at police station Kotwali Khalilabad, Sant Kabir Nagar, in which applicant is on bail.

viii- placing reliance on the judgment of co-ordinate bench of this Court in the matter of Durvin Singh Vs. State of UP and others 2021 (4) AWC 3271, it is argued that Abdul Rahman Khan is not a person aggrieved, therefore, he has no locus to oppose the relief as sought for by the applicant by means of this application. He is a notorious person and made complaint for exerting undue pressure upon the applicant for a wrongful favours. Emphasis has been given by contending that Abdul Rahman Khan has not only made complaint but also chasing the matter up to this Court, which shows his ulterior purposes.

ix-during investigation, applicant was never called to ensure fair investigation. Now after investigation, charge-sheet has been submitted on 12.01.2022 against the applicant, therefore, there is no need of his arrest. On granting anticipatory bail to the applicant, he will not misuse the liberty and will cooperate with the trial.

6- Per contra, learned A.G.A. for the State opposed the prayer for anticipatory bail application of the applicant by contending that offence is made out against the applicant. However, Mr. Pankaj Kumar Shukla, learned counsel appearing on behalf of Abdul Rahman Khan admitted that Abdul Rahman Khan is not a person aggrieved in this case. He further submits that he want to withdraw his vakalatnama.

7-Looking to the facts of the case and there being no possibility of his fleeing from justice, this court is of the view that prima-facie applicant has made out a case for interim anticipatory bail.

8-Learned Additional Government Advocate for the State prays for and is granted three weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed by the applicant within a week thereafter.

9-List this case on 31.08.2022.

10-Till the next date of listing, in the event of arrest of the applicant Ashwani Kumar Gupta involved in the aforesaid case, he shall be released on ad-interim anticipatory bail on his furnishing a personal bond of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of Court concerned and subject to condition that the applicant shall make himself available on each dates before the concerned Court below/trial Court and shall co-operate with the trial. He shall not seek any adjournment."

It is submitted by learned counsel for the applicant that applicant is appearing on each dates before the trial court and extending his full co-operation. He has not misused the liberty of aforesaid interim anticipatory bail order dated 03.08.2022, which was extended time to time by this Court, therefore, the same is liable to be made absolute till conclusion of the trial. Lastly, it is submitted that in future also the applicant will not misuse the liberty and will cooperate with the trial.

Learned A.G.A. for the State opposed the prayer for anticipatory bail of the applicant by contending that after investigation, charge-sheet has been submitted against the applicant but does not dispute the factual aspect of the matter as argued on behalf of the applicant which are noted in the aforesaid interim anticipatory bail order dated 03.08.2022. Learned A.G.A. also does not dispute that the applicant was not arrested during investigation and after submission of charge-sheet, he is appearing before the trial court.

In view of the above, aforesaid interim anticipatory bail order dated 03.08.2022 is made absolute till conclusion of the trial, subject to following conditions:

(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court on each dates unless inevitable.

(ii) That 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 tamper with the evidence.

(iii) That the applicant shall not involve in any criminal activity.

(iv) In case of breach of any of the conditions mentioned above, the concerned Court below will be at liberty to cancel the anticipatory bail of the applicant after recording reasons.

(v) In case, it is found that applicant has obtained this order concealing any material facts, the investigating officer shall be at liberty to file an appropriate application for cancellation of anticipatory bail granted to the applicant.

It is clarified that observations made in this order at this stage is limited to the purpose of determination of this anticipatory bail application only and will in no way be construed as an expression on the merits of the case. The concerned Court below shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials / evidences on record.

With the aforesaid observations and directions, the instant anticipatory bail application is allowed.

Order Date :- 19.4.2023

Saurabh