Uma Karan vs State Of U.P. Thru. Secy. Home, ...
2023 Latest Caselaw 14343 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:31791
 
Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 837 of 2023
 

 
Applicant :- Uma Karan
 
Opposite Party :- State Of U.P. Thru. Secy. Home, Lko. And Another
 
Counsel for Applicant :- Vashu Deo Mishra
 
Counsel for Opposite Party :- G.A.,O.P. Tiwari
 

 
Hon'ble Karunesh Singh Pawar,J.

1.The applicant has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in Case Crime No.365 of 2021 under sections 420, 504, 506, 120B I.P.C., P.S. Hasanganj, district Unnao.

2.Heard learned counsel for the applicant and learned A.G.A. for the State who has filed counter affidavit on behalf of the State which is taken on record as also learned counsel for the complainant who is also present in person in pursuance to earlier order passed by this Court.

3.Vide order dated 7.4.2023, the applicant was granted interim protection by a Coordinate Bench of this Court. Gist of the issue involved in the present matter is given in the said order, which is extracted below :

" Heard Shri Vashu Deo Mishra, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.

The present anticipatory bail application has been moved by the accused/applicant- Uma Karan in Case Crime No.365 of 2021, under Sections 420, 504, 506, 120-B I.P.C., Police Station Hasanganj, District Unnao, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.

It is further submitted that F.I.R. of this case has been lodged by moving an application under Section 156(3) Cr.P.C. and the allegations, which have been stated in the application under Section 156(3) Cr.P.C. have been aggravated with the help of legal professional and thus the F.I.R. has been lodged after taking advice of legal professional.

It is also submitted that during the course of investigation the investigating officer had issued a notice under Section 41A Cr.P.C. and the applicant in response to that notice had appeared before the investigating officer and have cooperated throughout the investigation and it is in that scenario charge sheet has been filed without making arrest of the applicant under Sections 420, 504, 506, 120-B I.P.C., which are all punishable with upto 7 years of imprisonment and still summons have been issued for appearance of the applicant before the trial court.

It is vehemently submitted that the applicant is apprehending his arrest not at the behest of the investigating agency as charge sheet has been filed, but on the occasion of his appearance/surrender before the trial court when he will appear before the trial court for the purpose of obtaining regular bail and as per practice followed in the State of U.P., disposal of his regular bail application may take sometime and in the meantime, the applicant may be remanded to custody (prison).

It is also submitted that the applicant is not having any criminal history and since he has cooperated in the investigation, he would also cooperated in the trial and would not take any adjournment especially with the prosecution witnesses would be in attendance, thus protection from arrest be granted to him.

It is also submitted that the applicant without admitting his guilt is ready to repay Rs.4.25 lakh, the whole consideration, which is stated to have been received by the applicant from the father of the informant namely Ram Chandra Jaiswal, however, for this purpose to arrange the money required to be paid to the father of the informant, some protection for sometime be granted to the applicant.

Learned A.G.A. on the other hand submits that the applicant has committed heinous offence, therefore, he is not entitled for any protection.

Having heard learned counsel for the parties and having perused the record, it is evident that since the charge sheet has been filed without arrest of the applicant and the offences, with which the applicant has been charged, are all punishable with upto 7 years of imprisonment and it is undertaken by learned counsel for the applicant that the applicant is willing to repay the whole of the consideration of Rs.4.25 lakh received from the father of the informant by the applicant, in the considered opinion of this Court, to provide an opportunity to fulfill the commitment made by the applicant to repay the whole of the consideration to the father of the informant, protection for sometime in view of the law laid down by Hon'ble Supreme Court in Nathu Singh Vs. State of U.P. and Others:(2021) 6 SCC 64 may be provided protection.

Issue notice to the opposite party no.2 returnable within ten days to the executed through the Chief Judicial Magistrate, Unnao so as to reach the compliance report of service of notice before the next date of listing.

Steps in this regard be taken by learned counsel for the applicant within two working days from today.

List this case on 24.03.2023 in the list of fresh cases, by which date as stated by learned counsel for the applicant, a draft of Rs.4.25 lakh shall be placed before the Court for payment to the father of the informant.

In the meantime, State may also procure complete/upto date case diary.

In order to provided sometime to the applicant to arrange the requisite fund to be paid to the father of the informant, it is provided that till the next date of listing i.e. till 24.04.2023 in the event of arrest of the applicant in lieu of any process of the trial court or otherwise by any police personnel/investigating officer in connection with above mentioned case crime number, applicant - Uma Karan, be released forthwith on his executing a personal bond to the tune of Rs.50,000/- (Rupees Fifty Thusand) with two sureties each in the like amount to the satisfaction of the SHO/ Investigating Officer/ Police Personnel of police station concerned/trial court, subject to the following conditions:

1. The applicant shall not leave boundaries of the District Unnao during the pendency of trial without prior permission from the concerned trial Court and for this purpose shall provide his mobile number to the investigating officer or S.H.O. concerned within which the applicant normally resides.

2. The applicant shall Cooperate in the investigation and will make himself available as and when required by the Investigating officer of the case, even for the recovery of any fact.

3. The applicant shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during his release on anticipatory bail.

4. In case, the applicant misuses the liberty of bail, the trial Court concerned may take appropriate action in accordance with law.

The restriction of not leaving the District Unnao shall not applicable in case the applicant is willing to appear before this Court for the purpose of payment of requisite consideration to the father of the informant/opposite party no.2. "

4.It is submitted on behalf of the applicant that to show his bona fide, the accused applicant has produced a Demand Draft dated 19.4.2023 of Rs.4,25,000/- as per undertaking given on behalf of the applicant. It is submitted that the demand draft is payable in the name of father of the informant as in the first information report, it was alleged that father of the informant gave Rs.4,25,000/-. The informant as well as his counsel have refused to receive the said demand draft, hence, it has been returned to the applicant's counsel.

He further submits that the applicant has cooperated in the investigation. Charge sheet has been filed. He undertakes on behalf of the applicant that the applicant shall cooperate in the trial.

5. It is submitted on behalf of the complainant that in fact, the amount was more than Rs.4,25,000/-, i.e. roughly Rs.17 lacs and therefore, they have refused to take the amount.

6. It is not disputed that the applicant is not having any criminal antecedent, he has also not misused the liberty granted by this court vide order extracted above and he has cooperated in the investigation.

7. Learned A.G.A. and learned counsel for the complainant have opposed the prayer made by the applicant's counsel.

8.Without expressing any opinion on the merits of the case, the fact that the offence is triable by Magistrate, the applicant has showed his bona fide by offering the draft of Rs.4,25,000/-, a copy whereof has been filed along with the supplementary affidavit, and considering the nature of accusation and the applicant having no criminal antecedents, the undertaking given on behalf of the applicant that he shall cooperate in the trial and gravity of offence, I am of the opinion that in the event of arrest/surrender before the concerned court, the applicant is entitled to be enlarged on anticipatory bail in this case in the light of judgment of Supreme Court in Sushila Aggarwal and others vs. State (NCT of Delhi) and another (2020)5 SCC 1, subject to his cooperation in the trial.

7.In view of the above as also keeping in view of the judgment in Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC OnLine 98, the accused applicant is directed to surrender before trial court if he is summoned to face trial for offence in question after filing of the charge sheet. In the event of arrest/surrender before the concerned court, the accused applicant shall be enlarged on anticipatory bail by the trial court on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the trial Court, with the following conditions.

(i) 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 tamper with the evidence;

(ii) The applicant shall not leave India without the previous permission of the court;

(iii)The applicant shall not pressurize/ intimidate the prosecution witness;

(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

8.In view of the aforesaid, the anticipatory bail application is allowed.

Order Date :- 8.5.2023

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