Allahabad High Court
Devmani @ Devman vs State Of U.P. Thru. Addl. Chief ... on 10 August, 2023
Bench: Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:53713
Court No. - 16
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1763 of 2023
Applicant :- Devmani @ Devman
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Civil Secrett. Lko. And Another
Counsel for Applicant :- Abhishek Mishra,Subhash Chandra Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi,J.
1. Heard Shri Abhishek Mishra, learned counsel for the applicant as well as Shri Rao Narendra Singh, learned A.G.A.-I representing the State and perused the records.
2. The instant application has been filed seeking release of the applicant on anticipatory bail in Case Crime No.0188 of 2020, under sections 419, 420, 467, 468, 471 of I.P.C., Police Station-Bhinga Kotwali, District-Shravasti.
3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 15.07.2020 by Block Education Officer stating that the documents of an Assistant Teacher, namely, Surendra Pratap Singh appeared to be fake whereupon he was given an opportunity to give his explanation. The F.I.R. states that Surendra Pratap Singh admitted that his real name is Dev Mani (applicant) and he was serving on the basis of forged documents in the name of Surendra Pratap Singh. Services of Surendra pratap Singh have been terminated by means of an order dated 14.07.2020.
4. Shri Rao Narendra Singh, learned A.G.A. has raised a preliminary objection that a proclamation under section 82 of Cr.P.C. has been issued against the applicant, however, he did not cooperate with the investigation.
5. Learned A.G.A. has relied upon a judgment of Hon'ble Supreme Court in the case of Prem Shankar Prasad vs. State of Bihar and others, reported in [2021 SCC OnLine SC 955] relying upon the earlier judgment of Hon'ble Supreme Court in the case of Lavesh Vs. State (NCT of Delhi) [(2012) 8 SCC 730], Hon'ble Supreme Court has held that normally when the accused is 'absconding' and declared as a 'proclaimed offender', there is no question of granting anticipatory bail. Hon'ble Supreme Court has reiterated that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and he is declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.
6. Replying to the aforesaid preliminary objection, learned counsel for the applicant has stated that the applicant was never served with any notice or warrant. In para 10 of the affidavit, it has been stated that the applicant lives in Punjab for earning his livelihood and he used to visit home after 2-3 years and he could not know about the lodging of the F.I.R. or issuance of the warrants against him. It has further been stated that the applicant has acquired Bachelor Degree in Arts and he has not availed B.Ed or B.T.C. degrees and he has not worked in the Primary School, as alleged, or in any primary school as a teacher, as has been alleged in the F.I.R.
7. Learned counsel for the applicant has relied upon a judgment dated 03.05.2023 rendered by a Coordinate Bench of this Court at Allahabad in Criminal Misc. Anticipatory Bail Application No.4560 of 2023, Udit Arya vs. State of U.P., wherein after taking into consideration the judgment of Hon'ble Supreme Court in the case of Prem Shankar Prasad (supra), this Court has held that normally, when the accused was absconding and declared proclaimed absconder, the core of judgment in Lavesh (supra) was in the expression "normally" and when the accused absconded or concealed himself to avoid the execution of warrant. Paras 14, 15 and 16 are relevant and the same are being quoted as under;
"14. It is true that in the judgment passed in Lavesh (supra), the said applicant was not enlarged on anticipatory bail as the proceedings under Section 82 Cr.P.C. were complete. In the case of Lavesh (supra) there was no question of granting anticipatory bail. "Normally", when the accused was absconding and declared proclaimed absconder, the core of judgment in Lavesh (supra) was in the expression "normally" and when the accused absconded or concealed himself to avoid the execution of warrant.
15. Neither the proceedings under Section 82 Cr.P.C. nor Section 438 Cr.P.C. impose any restriction in the filing of anticipatory bail application by the proclaimed offender. Even in the Lavesh (supra) while laying down the law, the Supreme Court has used word "normally".
16. Section 438 Cr.P.C. was inserted to the Code as it was seen that the influential persons try to implicate their rivals in false cases for the purpose of disgracing them by detaining them in jail for some time. It is true, such powers are to be exercised in exceptional cases. The prosecution cannot be permitted to be converted into an arena to settle scores."
It has further been stated in the affidavit filed in support of the application that the charge-sheet against the application has already been submitted on 26.03.2021, which indicates that the investigation stands completed and there is no need for custodial interrogation of the applicant.
8. Matter requires consideration.
9. Learned A.G.A. may file counter affidavit within two weeks.
10. Rejoinder affidavit, if any, may be filed within a week thereafter.
11. List in the week commencing 04.09.2023.
12. In view of the aforesaid facts, till the next date of listing, it is hereby provided that in case of arrest/appearance before the Station House Officer/Court concerned applicant shall be released on anticipatory bail.
Order Date :- 10.8.2023
akhilesh/
