Prateek Agarwal vs State Of U.P. And Another
2023 Latest Caselaw 23555 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172716
 
Court No. - 71
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9301 of 2023
 

 
Applicant :- Prateek Agarwal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Aishwarya Pratap Singh
 
Counsel for Opposite Party :- G.A.,Azim Ahmad Kazmi, Khurshed Alam
 

 
Hon'ble Shekhar Kumar Yadav,J.

1. Rejoinder affidavit has been filed today, is taken on record.

2. Heard Mr. Manish Tiwari, learned Senior Counsel assisted by Mr. Aishwarya Pratap Singh, learned counsel for the applicant, learned Additional Government Advocate for the State and Mr. Azim Ahmad Kazmi, learned counsel for the informant.

3. This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.185 of 2022, under Sections 498-A, 323, 506, 120-B, 420, 467, 468, 471, 406 IPC and Section 3 and 4 of Dowry Prohibition Act, 1961 and Section 66D of Information Technology Act, 2000, Police Station Mahila Thana, District Ghaziabad.

4. Learned counsel for the applicant submits that applicant has been falsely implicated in the present case just to harass the applicant in fact no such incident has taken place as alleged in the impugned FIR. The applicant has never committed any offence as alleged in the impugned FIR. The applicant and his family members are presently residing in Kolkata whereas the complainant is residing at Ghaziabad, U.P. The applicant is suffering from multiple health issues like cardiac problem, hypertension etc. The applicant and the complainant/informant were married on 04.12.2015, and later on, due to complainant's aggressive behavior, some matrimonial dispute arose between them and ultimately their marriage broke down, thereafter, the complainant left her matrimonial home twice. The complainant finally left her matrimonial house with all her ornaments on 09.06.2021, due to this reason, the applicant was constrained to file petition under Section 13 (1)(ia)(ib) of Hindu Marriage Act, 1955 before the court of West Bengal, which was allowed ex-parte by order dated 07.04.2022. Being aggrieved, the complainants filed recall application for recalling the ex-parte divorce decree dated 07.04.2022, which is still pending. He further submits that in the meantime, the applicant remarried on 25.07.2022 and presently residing with his wife. He further submits that after passing ex-parte decree of divorce, the complainant has filed multiple false cases including a case under the domestic violence act as well as Section 125 Cr.P.C. seeking maintenance. In the present case, the entire family members including the applicant has been implicated alleging the incident which is alleged to have taken between 04.12.2015 to 10.06.2022. He further submits that applicant has filed anticipatory bail before the learned Sessions Court Ghaziabad and vide order dated 27.07.2023 an interim anticipatory was granted to the applicant and the same was extended time to time. Said FIR has been lodged at Ghaziabad but after some time, the matter was transferred to Bhojpur Police Station, Ghaziabad on 07.08.2023 wherein the matter is under investigation. He further submits that the applicant has cooperated with both the IOs i.e. the Mahila Thana, Ghaziabad and Bhojpur Police Station, Ghaziabad. Previous IO had visited the applicant house at Kolkata and the applicant has submitted a list of documents and evidence to prove his innocence. He further submits that a summon under Section 41A Cr.P.C. was also issued to the applicant by the earlier IO and the applicant duly appeared on 04.02.2023 and undertook to fully cooperate with the investigation and provide all necessary informant. A notice under Section 91 Cr.P.C. was also issued to the applicant by the new IO and sought for his statement to be recorded under Section 161 Cr.P.C. and also to provide all necessary documents.

5. Mr. Tiwari further submits that the complainant by way of complaint under Section 340 Cr.P.C. has also filed a complaint under Sections 420, 467, 468, 471, 406 IPC before learned family court of Kolkata, therefore, the same issue cannot be agitated twice, which in the present case has been done by the complainant. The learned family court of Kolkata has already taken cognizance upon the complaint, therefore, during its pendency, second complaint with respect to the same cause of action cannot be entertained and investigated upon as per law. He further submits that upon conjoint reading of Sections 155 and 177 Cr.P.C., it becomes absolutely transparent that allegation with respect to forgery are allegedly for the acts committed in the proceedings before the learned family court of Kolkata, therefore, inquiry and any other further action can only be taken by that particular court and none other. Moreover, with respect to the aforesaid allegations even the present investigating officer cannot investigate upon, since the same is not within its territorial jurisdiction. The complainant has already raised the issue regarding forgery before the court of Kolkata, therefore, the 'cause of action' stands satisfied with respect to the same issue at hand, hence, agitating the same again in the impugned FIR cannot be made permissible as per the present mandate of the criminal law.

6. Mr. Tiwari further submits that divorce suit is also filed at Kolkata whereas the applicant is residing at Kolkata, thus, the summon issued to the complainant through Indian Post, which has been served upon complainant at Ghaziabad where she is residing, there was no occasion for the applicant to make forged signature of the complainant at Ghaziabad, therefore, no offence under Sections 420, 467, 468 and 471 IPC is made out against the applicant. Since there is no medical report in respect of the injury of the complainant, as such, no offence under Sections 323 and 506 IPC is also made out against the applicant. So far as allegation of demand of dowry is concerned, the complainant is herself a chartered accountant whereas the applicant is having handsome business, therefore, there is no question of demand of dowry, hence, no offence under Section 498-A is made out against the applicant.

7. He further submits that the anticipatory bail application of the applicant's mother, father, sister and uncle have already been allowed, copy of the same has been filed as Annexure No.11 to the affidavit filed in support of the application. He further submits that the applicant has fully cooperated in the investigation and has not misused the liberty of bail, therefore, there is no need of custodial interrogation of the applicant, hence, the applicant may be enlarged on anticipatory bail till conclusion of trial. Reliance in this regard has been placed on Arnesh Kumar vs. State of Bihar and another (2014) 8 SCC 273, Mohd. Asfak Alam vs. The State of Jharkhand, Criminal Appeal No.2207 of 2023 and Siddharam Satlingappa Mhetre vs. Stae of Maharashtra (2011) 1 SCC 694.

8. Learned A.G.A. as well as learned counsel for the informant have vehemently opposed the prayer for anticipatory bail of the applicant and have prayed for rejection of the same by submitting that the applicant has lodged several FIRs against the complainant just to harass the complainant. The divorce petition filed by the applicant was also decreed ex-parte on 07.07.2022 assuming service to be sufficient upon the complainant. She has never issued any notice, therefore, so called notice issued to the complainant is forged and fabricated. He further submits that when the complainant came to know about the ex-parte divorce decree, she has filed recall application on 04.08.2022 for setting aside the ex-parte decree, which is still pending before Kolkata. He further submits that perusal of aforesaid documents clearly indicates that a conspiracy has been hatched by the applicant for playing fraud upon the complainant even dared to get the court record manipulated by initially getting the service of summons meant for the complainant to be effected upon a person, named, Tanmay at Sector-2 Vaishali, Ghaziabad and thereafter when the said manipulation was detached, an inqury was sent in motion on the complaint of the complainant and the matter was refereed by the investigating officer to FSL for verification but the applicant has again managed to manipulate the court record. He further submits that since the matter being highly sensitive and serious, the same was brought to the knowledge of the trial court hearing the recall application, therefore, the same was rightly taken note by the trial judgment and an inquiry initiated to find out the source of manipulation. He further submits that after expiry of 90 days, she filed the recall application because 90 days elapsed so she could not filed appeal under Section 28 of Hindu Marriage Act.

9. He further submits that the allegations are very serious and keeping in view the seriousness of the allegations made against the applicant, applicant is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

10. Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties also considering the nature of accusations and antecedents of the applicant, particularly, seeing the fact that since the matter is already subjudice before Kolkata, the present FIR lodged against the applicant and his family members, on the same cause of action before State of U.P., in my opinion, is not justified, therefore, the applicant is entitled for grant of anticipatory bail.

11. Accordingly, the applicant is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

12. In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant-Prateek Agarwal, involved in the aforesaid case crime be released on anticipatory bail till conclusion of trial on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

(i) The applicant shall co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation.

(ii) 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 to any police officer.

(iii) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

(iv) The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.

(v) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.

(vi) In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

(vii) 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 his bail and proceed against his in accordance with law.

13. In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

14. With the aforesaid observations/ directions, the application is allowed.

Order Date :- 28.8.2023

Ajeet