Avinash Kumar vs Union Of India Thru. ...
2023 Latest Caselaw 19107 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:49459
 
Court No. - 16
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 276 of 2023
 

 
Applicant :- Avinash Kumar
 
Opposite Party :- Union Of India Thru. Superintendent Of Cbi/Acb Lko.
 
Counsel for Applicant :- Ayodhya Prasad Mishra A.P. Mishra,Rituraj Mishra
 
Counsel for Opposite Party :- Anurag Kumar Singh
 

 
Hon'ble Subhash Vidyarthi,J.

On 07.02.2023 after hearing the learned counsel for the applicant and the learned A.G.A. this Court had passed the following interim order -

"Heard Sri A.P. Mishra, learned counsel for the applicant and Sri Anurag Kumar Singh, learned counsel for the C.B.I.

This anticipatory bail application has been filed by the present applicant (Avinash Kumar) apprehending his arrest in R.C.No.0062022A0012/2022, Crl. Case No.2675 of 2022, under Sections 120-B r/w Sections 406, 409, 420, 467, 468, 471 & 477-A I.P.C., under Sections 13 (2) r/w 13 (1) (a) of Prevention of Corruption Act, 1988, Police Station-C.B.I./A.C.B., District-Lucknow.

Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in this as he has not committed any offence as alleged in the prosecution story so narrated in the First Information Report (in short F.I.R.).

Sri A.P. Mishra, learned counsel for the applicant has drawn attention of this Court towards Annexure No.8 of this application, which is an order dated 17.10.2022 passed by this Court in Criminal Misc. Anticipatory Bail Application (U/S 438 Cr.P.C.) No.1709 of 2022 of the present applicant for the same offence granting him anticipatory bail.

However, Sri Anurag Kumar Singh, learned counsel for the C.B.I. has stated that so far as the order of anticipatory bail dated 17.10.2022 is concerned, he has nothing to say but in the present case he is willing to file a counter affidavit bringing on record some relevant documents, therefore, he may be given time to file counter affidavit.

Learned counsel for the applicant has submitted that the present applicant is serving on the post of Postal Assistant in the Postal Department at Varanasi Cantt. Post Office. On the basis of the aforesaid F.I.R. wherein the allegation starts from 2015 to 2019, a thorough investigation was conducted by the C.B.I. wherein the present applicant has co-operated and has never misused the process of law. He appeared before the Investigating Agency each and every day and has provided all materials required by the Investigating Agency, which were then his possession. After completion of thorough investigation the charge-sheet has been filed against the present applicant on 09.12.2021.

Sri A.P. Mishra, learned counsel for the applicant has placed reliance upon the recent judgment/ order of this Court delivered in Criminal Misc. Anticipatory Bail Application (U/S 438 Cr.P.C.) No.13956 of 2021; Ravi Shankar Pandey Vs. State through C.B.I. and others wherein this Court after considering the dictum of Hon'ble Apex Court rendered in Joginder Kumar vs State of Uttar Pradesh reported in (1994) 4 SCC 260, Siddharth vs. State of U.P. and another reported in (2021) 1 SCC 676 and Aman Preet Singh vs. C.B.I. through Director, Criminal Appeal No.929 of 2021 and also considering the fact that since the said applicant co-operated with the investigation, therefore, his arrest may not be warranted for the reason that the charge-sheet has been filed against him.

In the judgment of Apex Court rendered in re: Joginder Kumar vs. State of Utter Pradesh reported in (1994) 4 SCC 260 wherein it has been observed that arrest is not mandatory if an accused person co-operates with the investigation as well as in the trial proceedings unless there is any specific or cogent reason to arrest him. The issuance of direction regarding arrest is the prerogative of the learned trial court concerned but such discretion should not be unreasoned inasmuch as the liberty of any person, which is guaranteed under Article 21 of the Constitution of India, may not be compromised in a cursory manner. Therefore, before issuing such order to arrest such person the settled proposition of law and the parameters so fixed by the Apex Court should be considered.

The Apex Court in re: Siddharth vs. State of U.P. and another reported in (2021) 1 SCC 676 has observed as under:

"We are in agreement with the aforesaid view of the High Courts and would like to give out imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 of the Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, some across cases where the accused has co-operated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he/ she is not required to be produced in custody. The word "custody" appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the charge-sheet."

(emphasis supplied)

The Apex Court in re: Aman Preet Singh vs. C.B.I. through Director, Criminal Appeal No.929 of 2021 has observed as under:

"Insofar as the present case is concerned and the general principels under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitled him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has bot even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

(emphasis supplied)

Sri A.P. Mishra, learned counsel for the applicant has therefore submitted that since the applicant is willing to participate in the trial proceedings in the same manner as he has participated in the investigating and the present applicant is giving undertaking that he shall not misuse the liberty of bail, the liberty of the present applicant may be protected till completion of the trial proceedings.

Per contra, Sri Anurag Kumar Singh, learned counsel for the C.B.I. has opposed the aforesaid prayer of Sri A.P. Mishra, learned counsel for the applicant and has submitted that since after investigation on the basis of credible evidence the charge-sheet has been filed against the present applicant, therefore, instead of approaching this Court under Section 438 Cr.P.C., he should have file the regular bail before the learned court below.

After filing of the charge-sheet when the learned court below took cognizance and issued summons, the present applicant appeared before the learned court below to co-operated in the trial proceedings. Since he was apprehensive of his arrest, therefore, he has filed his anticipatory bail application apprising the court that since he has co-operated in the investigation and has not flouted the process of law, therefore, in view of the settled proposition of law of Apex Court in re: Siddharth (supra) and Aman Preet Singh (supra), he may not be arrested and he has given undertaking to the learned court below that he shall co-operate in the trial proceedings and shall not misuse the liberty of bail, if granted. However, his anticipatory bail application has been rejected.

Therefore, without entering into merits of the issue, considering the arguments of learned counsel for the parties, the contents and allegations of F.I.R., the fact that the present applicant has co-operated in the investigation and has never flouted the process of law; the applicant appeared before the learned court below; and then the learned court below/ trial court took cognizance of the charge-sheet and issued the summons; the undertaking of the present applicant that he shall co-operated in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate that the liberty of the present applicant may be protected till completion of trial proceedings in view of the dictum of Apex Court rendered in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.

Therefore, it is directed that in the event of arrest/ appearance, the present applicant (Avinash Kumar) shall be released on anticipatory bail in the aforesaid case crime number till conclusion of trial 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 not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade from disclosing such facts to the court or to any police officer or tamper with the evidence;

2. that the applicant shall not leave India without prior permission of the court;

3. that the applicant shall not pressurize/ intimidate the prosecution witnesses and shall not tamper with evidence during trial;

4. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

5. that in case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

6. that in default of any of the conditions mentioned above, the learned counsel for the C.B.I. shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

Before parting with, it is expected that the trial shall be concluded with expedition, strictly in accordance with law, without adjourning the case for any unnecessary reason. Further, the learned trial court may take all coercive measures, as per law, if either of the parties do not co-operate in the trial properly.

Let the counter affidavit be filed within a period of two weeks.

List this case in the week commencing 24.04.2023 along with Crl. Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 200 of 2023."

Although a counter affidavit has been filed, nothing has come to light which may persuade this Court to take a view, different from the view taken while passing the aforesaid order, nor the learned A.G.A. has pointed out violation of any of the conditions of interim anticipatory bail committed by the applicant.

In view of the aforesaid circumstances, the interim order dated 07.02.2023 is hereby made absolute and the application is allowed in terms of the aforesaid order.

(Subhash Vidyarthi J.)

Order Date :- 26.7.2023

Shanu/-