Motichand Yadav vs State Of U.P. And 2 Others
2023 Latest Caselaw 16257 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:113096
 
Court No. - 49
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5857 of 2023
 

 
Applicant :- Motichand Yadav
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- M.S. Chauhan
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. M.S. Chauhan, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for anticipatory bail has been filed by applicant- Motichand Yadav, seeking anticipatory bail in connection with Case Crime No. 56-A of 2006, under Sections 409, 420, 467, 468, 471, 120B IPC, Police Station-Rasra, District-Ballia.

4. Record shows that in respect of incidents, which are alleged to have occurred in between 2002-2005, a delayed FIR dated 06.05.2006 was lodged by first informant-opposite party 3-Uday Narayan Rai, Economical Offence Wingh (E.O.W.) and was registered as Case Crime No. 56-A of 2006, under Sections 409, 420, 467, 468, 471, 120B IPC, Police Station-Rasra, District-Ballia. In the aforesaid FIR, 112 persons have been nominated as named accused.

5. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C.

6. At this juncture, applicant filed Criminal Misc. Writ Petition No. 7456 of 2017 (Moti Chand Yadav and 4 others Vs. State of U.P. and 3 others) which was disposed of finally, vide order dated 05.05.2017. Accordingly, the liberty of the applicant stood protected till the submission of the police report under Section 173(2) Cr.P.C.

7. After completion of investigation of aforementioned case crime number, Investigating Officer submitted the charge sheet dated 9.10.2022. After filing of the charge sheet as noted above, named co-accused Lallan Pal approached this Court by means of Criminal Misc. Anticipatory Bail application under Section 438 Cr.P.C. No. 5246 of 2023 (Lallan Pal Vs. State of U.P. and 2 Others). The said anticipatory bail application came to be allowed by this Court vide order dated 10.05.2023. For ready reference, the order dated 10.05.2023 is reproduced hereinunder:-

"1. List has been revised.

2. Heard Sri M.S. Chauhan, learned counsel for the applicant and Sri V.K.S. Parmar, learned A.G.A. for the State as well as perused the record.

3. The present anticipatory bail application has been filed on behalf of the applicant in Case Crime No.56-A of 2006, registered under Sections 419, 420, 467, 468, 471, 120B and 34 IPC at Police Station- Rasra, District Ballia with a prayer to enlarge him on anticipatory bail.

4. Learned counsel for the applicant has stated that the applicant was enlarged on anticipatory bail till the submission of report under Section 173(2) Cr.P.C. by this Court vide order dated 25.10.2021. Learned counsel has further stated that the applicant has not misused the opportunity granted earlier and has co-operated during investigation.

5. In support of his submission, learned counsel has placed reliance upon the judgement of the Apex Court in Aman Preet Singh vs. C.B.I. through Director AIR 2021 SC 4154, wherein the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant has apprehension of his arrest. Learned counsel for the applicant undertakes that he has co-operated in the investigation and is ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail.

6. Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application but unable to dispute the submissions raised by the learned counsel for the applicant.

7. On due consideration to the arguments advanced by learned counsel for the applicant as well as learned A.G.A. and considering the nature of accusations and antecedents of the applicant, the applicant is liable to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5 SCC 1". The future contingencies regarding the anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

8. In view of the above, the anticipatory bail application of the applicant is allowed. Let the accused-applicant- Lallan Pal be released forthwith in the aforesaid case crime (supra) on anticipatory bail till the conclusion of trial on furnishing a personal and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i). that the applicant shall make himself available for interrogation by a police officer as and when required;

(ii). 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;

(iii). that the applicant shall not leave India without the previous permission of the court;

(iv). that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;

(v). that the applicant shall not pressurize/ intimidate the prosecution witness;

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

(vii). that in case of breach of any of the above conditions the court below shall have the liberty to cancel the bail.

9. It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial."

8. On the above premise, the learned counsel for applicant contends that in view of above and for the facts and reasons recorded in the order dated 10.05.2023, the present application for anticipatory bail is also liable to be allowed. There is no such distinguishing feature on the basis of which, the case of present applicant could be so distinguished from the case of co-accused Lallan Pal so as to deny him the benefit of anticipatory bail during the course of trial. On the above premise, it is thus urged that present application for anticipatory bail is also liable to be allowed by this Court.

9. Per contra, the learned A.G.A. has opposed the present application for anticipatory bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, evidence, accusation made and complicity of applicant coupled with the fact that applicant was already granted anticipatory bail during the course of investigation, the charge sheet having been submitted, therefore, the evidence sought to be relied upon by the prosecution against applicant now stands crystallized, there being no such circumstance necessitating the custodial arrest of applicant during the course of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 6), the clean antecedents of the applicant inasmuch as, he has three criminal history to his credit except the present one, but without making any comments on the merits of the case, applicant has made out a case for grant of anticipatory bail.

11. The Anticipatory Bail Application is accordingly allowed.

12. Let the applicant-Moti Chand Yadav, be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

13. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 23.5.2023

HSM