Allahabad High Court
Kripa Shankar Tiwari vs State Of U.P. Thru. Addl. Chief ... on 24 January, 2023
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 11
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 161 of 2023
Applicant :- Kripa Shankar Tiwari
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home, Lko. And Another
Counsel for Applicant :- Pradeep Kumar Rai,Prakarsh Pandey,Praveen Kumar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Rajesh Singh Chauhan,J.
Heard learned counsel for the applicant and learned AGA for the State.
As per learned counsel for the applicant, the present applicant is apprehending his arrest in Case Crime No.318 of 2020, Under Sections 13(1)(b) and 13(2) of Prevention of Corruption Act, 1988, Police Station- Fatanpur, District- Pratapgarh.
This is the second anticipatory bail application as first anticipatory bail application was disposed of vide order dated 28.09.2022 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.1616 of 2022 at the stage of investigation. For the convenience, the order dated 28.09.2022 is being reproduced herein below:-
"Heard Sri P.K. Rai, learned counsel for the applicant and Sri Vinay Kumar Shahi, learned Additional Government Advocate for the State.
By means of present anticipatory bail application, the applicant has shown his apprehension of arrest in Case Crime No.318 of 2020 u/s 13(1)(b) and 13(2) of Prevention of Corruption Act, 1988, P.S. Fatanpur, District Pratapgarh.
It has been submitted that the applicant has been falsely implicated in this case as the applicant has not committed any such offence as alleged by the prosecution. Attention has been drawn towards the impugned F.I.R. which has been got registered on the basis of one inquiry conducted in the year 2019 relating to the incident when the present applicant and his wife were Gram Pradhan. The present applicant was Gram Pradhan w.e.f. 2015-2020. The reason for delay in lodging F.I.R. has not been indicated anywhere so as to give the colour and severity regarding allegations the income of the present applicant as well as his wife has been clubbed illegally. The present applicant is cooperating with the investigation properly and to the best of his information the investigation has been pleaded but charge-sheet has not been filed, however, the same has been prepared by the investigating officer. He has further submitted that in the order of rejection of anticipatory bail by the learned court below, it has been indicated that the charge-sheet has been filed but to the best information of the applicant, no charge-sheet has yet been filed. Learned counsel for the applicant has further submitted that the present applicant is having no prior criminal history of any kind whatsoever. Further, the applicant shall cooperate with the investigation and he shall abide by all terms and conditions of the bail order, if granted.
On being confronted, the learned AGA has apprised that he has got no specific instructions on that point that a bare perusal of the rejection order reveals that charge-sheet has been filed against the present applicant. Learned AGA has also submitted that the present applicant was involved in corruption when he was Pradhan of the village in question but he could not explain the reason that after completing tenure of Gram Pradhan in the year 2010 as to why no F.I.R. was lodged against the applicant and his wife. On being further confronted the learned AGA as to why the income of his wife has been clubbed with him when both have allegedly committed separate offence, if any in their tenure, learned AGA further could not explain. Further, learned AGA could not explain the delay in lodging the F.I.R. inasmuch as the inquiry was completed in the year 2019 but the F.I.R. was lodged in the year 2020, to be more precise on 26.12.2020. However, he has submitted that he may seek specific instructions on the specific queries of the Court.
Without entering into merits of the issue; considering the arguments of the learned counsel for the parties; contents and allegations of the FIR; other material available on record and undertaking of the applicant that he shall cooperate with the investigation, I find it appropriate that liberty of the present applicant may be protected till filing of police report under Section 173 (2) Cr.P.C. in view of the dictum of the Hon'ble Apex Court in re; Sushila Aggarwal vs. State (NCT of Delhi), 2020 SCC online SC 98.
Therefore, it is directed that in the event of arrest, applicant- Kripa Shankar Tiwari shall be released on anticipatory bail in the aforesaid case crime number till filing of police report under Section 173 (2) Cr.P.C. on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the arresting authority/ court concerned with the following conditions:
1. that the applicant shall make himself available for interrogation by a police officer as and when required;
2. 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 to any police officer or tamper with the evidence;
3. that the applicant shall not leave India without the previous permission of the court;
4. that in default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant;
5. that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;
6. that the applicant shall not pressurize/ intimidate the prosecution witness.
In the aforesaid terms, the instant anticipatory bail application is disposed of."
Learned counsel for the applicant has stated that in compliance of the order dated 28.09.2022, necessary bond and sureties have been filed before the learned court below. He has never misused the liberty of anticipatory bail granted to the applicant earlier. Now, the charge sheet has been filed. Since the applicant has already filed sureties and personal bond before the learned trial court, therefore, he shall cooperate in the trial proceedings and shall not misuse the liberty of the anticipatory bail. Learned counsel for the applicant has drawn attention of this Court towards paras-6 & 7 of the judgment of the Apex Court dated 05.03.2021 in re; Dr. Rajesh Pratap Giri v. State of U.P. & Anr., Criminal Appeal Nos.272-273 of 2021, which reads as under:-
"6. The issue involved in the present case, as to whether anticipatory bail once granted, lapses or comes to an end on the filing of a charge sheet has been decided by this Court, in the case of Sushila Aggarwal (supra). Ravindra Bhat, J., in his concurring opinion holds as follows:
"77.3. In these circumstances, the mere fact that an accused is given relief under Section 438 at one stage, per se does not mean that upon the filing of a chargesheet, he is necessarily to surrender or/and apply for regular bail. The analogy to "deemed bail" under Section 167(2) with anticipatory bail leads this Court to conclude that the mere subsequent event of the filing of a chargesheet cannot compel the accused to surrender and seek regular bail. As a matter of fact, interestingly, if indeed, if a chargesheet is filed where the accused is on anticipatory bail, the normal implication would be that there was no occasion for the investigating agency or the police to require his custody, because there would have been nothing in his behaviour requiring such a step. In other words, an accused, who is granted anticipatory bail would continue to be at liberty when the chargesheet is filed, the natural implication is that there is no occasion for a direction by the court that he be arrested and further that he had cooperated with the investigation."
(emphasis supplied)
7. The same is reiterated in the section headed final conclusions wherein the Court has laid down certain principles on the basis of the two concurring opinions in the following words:
"91.2. As regards the second question referred to this Court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so."
(emphasis supplied)
Therefore, learned counsel for the applicant has stated that the present applicant may be enlarged on anticipatory bail till conclusion of the trial proceedings in view of the dictum of the Apex Court in re; Sushila Aggarwal vs. State (NCT of Delhi), 2020 SCC online SC 98.
Learned AGA has opposed the aforesaid request but could not dispute the aforesaid contentions of the learned counsel for the applicant.
Therefore, without entering into merits of the issue; considering the arguments of the learned counsel for the parties; the fact that the present applicant was granted anticipatory bail at the stage of investigation vide order dated 28.09.2022; he has not misused the liberty of bail; he has filed sureties and personal bond before the learned trial court; the dictum of the Apex Court in re; Dr. Rajesh Pratap Giri (supra) and the undertaking of the applicant that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to grant anticipatory bail to the applicant till conclusion of the trial.
Accordingly, the instant anticipatory bail application is allowed.
Since the present applicant is said to have filed his personal bond and sureties before the learned trial court, therefore, if sureties and personal bond have already been filed, he need not submit fresh sureties and personal bond.
It is directed that in the event of arrest, applicant- Kripa Shankar Tiwari shall be released on anticipatory bail in the aforesaid case crime till conclusion of the trial with the following conditions:-
1. that the applicant shall make himself available for interrogation by a police officer as and when required;
2. 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 to any police officer or tamper with the evidence;
3. that the applicant shall not leave India without the previous permission of the court;
4. that the applicant shall not pressurize/ intimidate the prosecution witness;
5. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
6. that in case of breach of any of the above conditions the court below shall have the liberty to cancel the bail.
[Rajesh Singh Chauhan,J.]
Order Date :- 24.1.2023
RBS/-
