Dinesh Chandra Dubey vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 5924 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1674 of 2022
 

 
Applicant :- Dinesh Chandra Dubey
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Ayodhya Prasad Mishra A.P. Mishra,Ajay Kumar Sharma,Rituraj Mishra,Shesh Ram Verma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karunesh Singh Pawar,J.

Heard Shri A.P.Mishra, learned Counsel for the applicant and learned A.G.A. for the State/respondent as well as perused the record.

Coordinate Bench of this Court while granting the interim protection vide order dated 11.10.2022 to the applicant, has passed the following order:-

"Heard Sri Ayodhya Prasad Mishra, learned counsel for the applicant and Sri Vinay Kumar Shahi, learned A.G.A.

The present applicant is apprehending his arrest in Case Crime No. 222 of 2022 u/s 409, 467, 468, 471 and 120B IPC, P.S. Wazirganj, District Lucknow.

Sri Mishra, learned counsel for the applicant has submitted that the impugned F.I.R. has been registered on 30.7.2022 pursuant to the inquiry report dated 12.7.2022 (Annexure no. 3) conducted by the three members committee. As per the conclusion of aforesaid inquiry report the Registrar, U.P. Homeopathic Medicine Board, six employees and other educational institutions are involved in making fraud and forgery to the tune of Rs. 47,63,98,358/-. Specific recommendation has been given in such inquiry report that appropriate legal action be taken against all six erring persons. However, the F.I.R. has been lodged against the present applicant who is a contractual clerk, one Smt. Sushma Mishra, Contractual Clerk, Smt. Suneeta Malik, who is not an employee of the U.P. Homeopathic Board and Educational institutions but no superior officer / senior officer / official including the Registrar has been named in the F.I.R.

On being confronted the learned AGA as to why a selective F.I.R. has been lodged and also as to why only two petty employees who are contractual clerks (Class-III employees) have been named in the F.I.R. leaving other senior / superior officers / officials, learned AGA could not satisfy the aforesaid query. He has requested that he may be granted some reasonable time so that he can file a detailed counter affidavit seeking specific instructions on that point.

Sri A.P. Mishra, has further submitted that the fraud in question which is of crores of rupees, in the present case it is about Rs. 48 Crores, may not be committed without the support of the superior officers / officials of the Social Welfare Department but the inquiry committee has been constituted of the officers of Social Welfare Department. Therefore, Sri Mishra has submitted that the independent committee should have been constituted to make inquiry / investigation excluding the employees of Social Welfare Department.

On that Sri Shahi, learned AGA has submitted that since the investigation is going on and if the culpability of any employee, be it is relating to U.P. Homeopathic Medicine Board or from the Social Welfare Department is found, they shall not be spared and if their culpability is found they may be implicated in the case. However, he has again submitted that he has not received complete instructions in the matter, therefore, some reasonable time may be given to file detailed counter affidavit. He has vehemently submitted that this is a case of fraud and forgery to the tune of Rs. 48 Crores approx., therefore, unless and until the counter affidavit is not filed no relief may be given to the present applicant.

Sri Mishra has submitted that one co-accused Smt. Sushma Mishra has been granted anticipatory bail till completion of the investigation, therefore, the same benefit may also be given to the present applicant against whom the allegations are the same. However, he has submitted that this Court vide order dated 28.9.2022 granting anticipatory bail to Smt. Sushma Mishra has clarified that other co-accused may not claim parity with Smt. Sushma Mishra as she is a lady.

Be that as it may, since this is a case of fraud and forgery to the tune of Rs.48 Crore approx wherein the culpability of the present applicant and other co-accused persons are to be ascertained during investigation and learned AGA has sought some time to file counter affidavit, therefore, I hereby grant two weeks time to file counter affidavit.

List this case on 2.11.2022 as fresh.

It is made clear that if the counter affidavit is not filed on or before 2.11.2022, the interim relief application of the present applicant may be heard and disposed of on the next date and on that date this fact may be considered that since the allegation against the present applicant and Smt. Sushma Mishra are the same, so as to whether the present applicant may be entitled for parity with Smt. Sushma Mishra or not."

Learned counsel for the applicant submits that the applicant is a contractual employee doing class-III job in U.P. Homeopathic Medicine Board. He is not drawing and disbursing authority. Only two petty employees, who are contractual clerks in the Homeopathic Medicine Board, has been arrayed as the accused maliciously by the prosecution. No one from the Samaj Kalyan Vibhag has been arrayed as an accused. Neither the Registry nor any other Officer of the Homeopathic Medicine Board has been arrayed as accused. He submits that even the 58 alleged institutions, who are the beneficiary of the department, have also not been made accused. Investigation is still going on. The applicant has not misused the liberty granted by this Court rather has cooperated in the investigation and has given statement to the Investigating Officer.

Learned A.G.A. has opposed the bail application, however, he fairly submits that apart from these two petty employees, who are contractual clerk, no other officer or employee have been arrayed as accused by the prosecution..

On due consideration to the fact that co-accused Sushma Mishra has been enlarged on anticipatory bail vide order dated 28.9.2022 passed in Crl. Mis. Anticipatory Bail Application No.1583 of 2022; so also the fact that no officer of Samaj Kalyan Vibhag, has been arrayed as an accused and the fact that the applicant has cooperated in the investigation; has no criminal history; and also considering the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1 and without entering into the merit of the case, it would be appropriate to grant anticipatory bail to the applicant under Section 438 Cr.P.C.

In view of the above, the anticipatory bail application is allowed. It is provided that in the event of arrest, the applicant shall be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the following conditions:-

(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation.

(ii) That the accused-applicant shall not, directly or indirectly make any inducement, threat and 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) That the accused-applicant shall not leave India without the previous permission of the Court.

In case of breach of any of the above conditions or in case it is otherwise found for any other reason the bail is required to be canceled, it shall be open for the State or the appropriate authority to move application for cancellation of bail/vacation of this order in accordance with law.

Order Date :- 23.2.2023

Madhu