Vivek Yadav And Another vs State Of U.P Thru. Prin. Secy. Home ...
2023 Latest Caselaw 29650 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
 
SITTING AT LUCKNOW
 

 
Neutral Citation No. - 2023:AHC-LKO:70020
 

 
RESERVED
 
Judgment Reserved on: 04.10.2023
 
	Judgment Pronounced on: 27.10.2023
 

 
Court No. - 16 
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1239 of 2023 
 
Applicant :- Vivek Yadav And Another 
 
Opposite Party :- State Of U.P Thru. Prin. Secy. Home Civil Secrt. Lko. And Another 
 
Counsel for Applicant :- Nadeem Murtaza,Aditya Vikram Singh 
 
Counsel for Opposite Party :- G.A.,Anil Kumar Khare,Prafulla Tiwari 
 
Hon'ble Subhash Vidyarthi J.
 
    1.

Heard Sri. Anoop Trivedi Senior Advocate assisted by Sri Vikas Tiwari and Sri. Nadeem Murtaza Advocates, the learned counsel for the applicants, Sri Anurag Verma, the learned AGA-I appearing for the State, Dr L. P. Misra and Sri Prafulla Tiwari Advocates, the learned counsel for the informant.

2. The instant application has been filed seeking anticipatory bail in F.I.R. No. 899 of 2021 under Sections 409 and 420 I.P.C. lodged against the applicants on 15.11.2021 in Police Station Gomti Nagar, Lucknow against the applicants stating that in furtherance of the applicants' request for a financial assistance of ₹ 50 lakhs for their personal requirements, the informant had paid the amount through a cheque dated 16.01.2019 in the name of SVY Infrastructure Private Limited. The applicants had promised to refund the amount within six months, but they did not do the same and grabbed ₹ 50 lakhs from the informant's company.

3. In the affidavit filed in support of the application, it has been stated that the applicants are innocent.

4. The criminal history of the applicants has been explained in the affidavit filed in support of the anticipatory bail application, as per which the applicant no. 1 was implicated in F.I.R/ No. 639 of 2015 Police Station Kalyanpur, Kanpur, in which he has been acquitted by means of a judgment and order dated 24.01.2018, which has not been challenged and which has attained finality. He is involved in four more cases, all of which have been lodged by the present informant. The informant had lodged a total of five F.I.Rs. against the applicants within a span of 24 hours and the investigating Officer has submitted closure report in respect of one of the F.I.Rs., bearing number 897 of 2022 on the ground that the allegations are the same as in F.I.R. No. 894 of 2022. The applicant No. 2 Vandana Singh is involved in a total of five F.I.Rs. lodged by the informant, four of which were lodged within a time span of 24 hours.

5. The informant has filed a counter affidavit, wherein the F.I.R. allegations have been reiterated.

6. Dr. L. P. Mishra, the learned Counsel for the informant, has submitted that for deciding the applicants' prayer for grant of anticipatory bail, this Court has to record a prima facie satisfaction regarding the need for custodial interrogation of the applicant's, prima facie satisfaction regarding commission of the alleged offence, the gravity of the offence and its impact on the society and the applicants' conduct. He has submitted that charge-sheets having already been submitted in respect of all the four F.I.Rs. filed against the applicant, there is no need for the applicants' custodial interrogation.

7. The applicants had filed an application under Section 482 Cr.P.C. challenging the charge-sheet filed pursuant to the F.I.R. and that application has been dismissed by means of a judgment and order dated 08.05.2023 passed by this Court. As per the learned Counsel for the informant, from the dismissal of the application under Section 482 Cr.P.C., commission of the alleged offence is prima facie established.

8. Regarding the conduct of the applicants, the learned Counsel for the informant has submitted that the applicants had filed a Writ Petition challenging validity of the F.I.R. and three other Writ Petitions were filed challenging the three other F.I.Rs. By means of an interim order, arrest of the petitioners was stayed. However, the Writ petitions were dismissed by means of a judgment and order dated 30.11.2021, on the ground that a charge-sheet had been submitted, the Court had taken cognizance and the accused had put in appearance before the trial Court and the Writ Petition had become infructuous. The applicants had assailed the orders dated 30.11.2021 by filing four S.L.P. (Crl.) Nos. 9808 of 2022, 9787 of 2022 and 9785 of 2022 and Diary No. 32276 of 2022, all of which were disposed off by the following order: -

"Permission to file the special leave petition is granted.

While we have some reservations on the findings recorded by the High Court that the petition filed under Article 226 of the Constitution of India had become infructuous, we are not inclined to issue notice as we believe that the petitioner(s) can take recourse to appropriate remedy consequent to the filing of the charge sheet vide proceeding(s) in accordance with law.

It will be open to the petitioner(s) to rely upon the orders and annexures filed with the present special leave petitions. We clarify that we have not made any comments or observations on the merits of the case.

We, however, are inclined to direct that the interim orders passed by the High Court on 30.11.2021 and 4.12.2021 will continue for a period of six weeks from today, subject to the petitioner(s) joining and cooperating with the investigation. It will also be open to the petitioner(s) to file an appropriate application(s) before the trial court/High Court for grant of regular/ anticipatory bail, which application(s) would be considered in accordance with law.

Recording the aforesaid, the special leave petitions are disposed of.

Pending application(s), if any, shall stand disposed of."

9. The applicants had filed applications seeking anticipatory bail from the Session Court in all the four cases on 04.09.2022 and those were rejected by means of separate orders dated 10.11.2022, stating that the anticipatory bail applications were filed on 16.09.2022, the S.L.Ps. were filed on 10.10.2022 without disclosing that the anticipatory bail applications had already been filed. While disposing off the S.L.Ps., the Hon'ble Supreme Court had provided in the order dated 04.11.2022 that the petitioners may file an appropriate application for grant of regular / anticipatory bail before the trial court / High Court and the Session Court was neither the trial court, nor the High Court, therefore the anticipatory bail application was not maintainable before the Session Court.

10. The learned Counsel for the informant has submitted that after the Hon'ble Supreme Court had passed the order dated 04.11.2022, the applicants ought to have filed a fresh application before the Session Court seeking anticipatory bail and the anticipatory bail application filed directly before this Court is not maintainable in view of the law laid down by a Full Bench of this Court in Ankit Bharti and others versus State of U.P and another, 2020 (3) ADJ 575.

11. In Ankit Bharti (Supra), the Full Bench has approved the following law laid down by a Bench consisting of an Hon'ble Single Judge in Vinod Kumar versus State of U. P., (2019) 12 ADJ 495: -

"In light of what has been held above, the Court records its conclusions on the questions formulated as under:-

A. Section 438 Cr.P.C. on its plain terms does not mandate or require a party to first approach the Sessions Court before applying to the High Court for grant of anticipatory bail. The provision as it stands does not require an individual first being relegated to the Court of Sessions before being granted the right of audience before this Court.

B. Notwithstanding concurrent jurisdiction being conferred on the High Court and the Court of Session for grant of anticipatory bail under Section 438 Cr.P.C., strong, cogent, compelling and special circumstances must necessarily be found to exist in justification of the High Court being approached first without the avenue as available before the Court of Sessions being exhausted. Whether those factors are established or found to exist in the facts of a particular case must necessarily be left for the Court to consider in each individual matter.

C. The words "exceptional" or "extraordinary" are understood to mean atypical, rare, out of the ordinary, unusual or uncommon. If the jurisdiction of the Court as conferred by Section 438 Cr.P.C. be circumscribed or be recognised to be moved only in exceptional situations it would again amount to fettering and constricting the discretion otherwise conferred by Section 438 Cr.P.C. Such a construction would be in clear conflict of the statutory mandate. The ratio of Harendra Singh must be recognised to be the requirement of establishing the existence of special, weighty and compelling reasons and circumstances justifying the invocation of the jurisdiction of this Court even though a wholesome avenue of redress was available before the Court of Sessions

D. What would constitute "special circumstances" in light of the nature of the power conferred, must be left to be gathered by the Judge on a due evaluation of the facts and circumstances of a particular case. It would be imprudent to exhaustively chronicle what would be special circumstances. It is impossible to either identify or compendiously postulate what would constitute special circumstances. Sibbia spoke of the "imperfect awareness of the needs of new situations". It is this constraint which necessitates the Court leaving it to the wisdom of the Judge and the discretion vested in him by statute.

E. While the Explanation may have created an avenue for an aggrieved person to challenge an order passed under Section 438(1), it cannot be construed or viewed as barring the jurisdiction of the High Court from entertaining an application for grant of anticipatory bail notwithstanding that prayer having been refused by the Court of Sessions.

12. In the present case, the applicants have not approached this Court directly. They had first filed an application for anticipatory bail before the Session Court, which has wrongly rejected the same as not maintainable and the applicants have thereafter approached this Court. Therefore, the present application does not appear to be barred by the principles laid down in Vinod Kumar (Supra), which were approved in Ankit Bharti (Supra).

13. As per the provision contained in Section 438 (1) Cr.P.C., jurisdiction to entertain anticipatory bail application vests in the High Court or the Court of Session only and it does not confer jurisdiction for granting anticipatory bails to the trial court, where the trial Court is not a Court of Session.

14. In A. R. Antulay versus R. S. Nayak, (1988) 2 SCC 602, a Constitution Bench of the Hon'ble Supreme Court had directed the High Court to try the offences under the Prevention of Corruption Act with which the petitioner therein was charged. The petitioner questioned the jurisdiction of the Supreme Court to give such a direction. A Bench of seven Hon'ble Judges laid down an authoritative proposition of law that the jurisdiction to try a case could only be conferred by law enacted by the legislature. The Supreme Court could not confer jurisdiction if it does not exist in law. This principle was followed and reiterated in Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507.

15. Therefore, although the Hon'ble Supreme Court had observed that the applicants may file an appropriate application for grant of regular / anticipatory bail before the trial court / High Court, the applicants could not have filed an application for grant of anticipatory bail before the trial Court, which in the present case is the Court of the Chief Judicial Magistrate, Lucknow, as Section 438 Cr.P.C. does not confer jurisdiction to entertain such an application on the Chief Judicial Magistrate.

16. The Session Court has wrongly rejected the applicants' anticipatory bail application on the ground that the Hon'ble Supreme Court had provided in the order dated 04.11.2022 that the petitioners may file an appropriate application for grant of regular / anticipatory bail before the trial court / High Court and, therefore, the anticipatory bail application was not maintainable before the Session Court whereas Section 438 Cr.P.C. confers jurisdiction on the Session Court to entertain applications seeking anticipatory bail.

17. The anticipatory bail application having been rejected by the Session Court, the only option left for the applicants was to file an application for anticipatory bail before this Court and they have rightly exercised this option. The applicants cannot be directed to again file a fresh anticipatory bail application before the Session Court. The preliminary objection raised by the learned Counsel for the informant lacks merit and the same is rejected.

18. In Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736, the Hon'ble Supreme Court had observed that: -

"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged...."

(Emphasis supplied)

19. Dr. Mishra has relied upon the decision in the case of Pratibha Manchanda and another versus State of Haryana and another, (2023) 8 SCC 181. The appellants in that case were senior citizens who were owners and had possession over the land in question for over a period of 30 years. They did not execute a sale deed or any power of attorney in favour of any third party. A person named Bhim Singh Rathi had applied for mutation of his name in respect of the land on the basis of a forged and fabricated sale deed which had been executed on the basis of a forged and fabricated power of attorney. The appellants claimed to be continuing in possession of the original sale deed for the subject land. The offending sale deed was executed in the year 2022 without providing a PAN number. There was no mention of the 1% amount of tax deducted at source being deposited, which also forms part of the requirements for execution and registration of a sale deed. The current market value of the land was not less than Rs 50 crores but the sale deed executed in 2022 mentioned the sale consideration to be merely Rs 6,60,62,500/-. The appellants had not received even this minuscule amount. In this factual background, the Hon'ble Supreme Court held that " It goes without saying that the alleged offences of forging documents for transferring ownership of land worth crores of rupees are grave in nature. Hence, while it is extremely important to protect the personal liberty of a person, it is equally incumbent upon us to analyse the seriousness of the offence and determine if there is a need for custodial interrogation." The Court further held that: -

"21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."

20. When we examine the facts of the present case in light of the law laid down in the aforesaid cases, what we find is that the informant's grievance is regarding non-refund of Rs.50,00,000/-, which he claims to have given to the applicants as financial assistance. No agreement was executed regarding repayment of the amount, indicating that the amount had been given as a loan. Even if it was given as a loan, the grievance of the informant appears to be regarding non-repayment of the loan amount, which would be a dispute predominantly of a civil nature and the relief in respect thereof can only be claimed in the form of a decree of recovery of money in a suit instituted after payment of Court fee. It appears that the informant has lodged the F.I.R. to put pressure on the applicants to pay him the disputed amount without the informant taking recourse to filing a suit for recovery of money.

21. Regarding the submission of Dr. Mishra, that the application under Section 482 Cr.P.C. No. 9394 of 2022 challenging the charge-sheet dated 11.04.2022 filed pursuant to F.I.R. No. 894 of 2022 has been dismissed by means of a judgment and order dated 08.05.2023 passed by this Court, commission of the alleged offence is prima facie established, suffice it to say that in Kamlesh and another versus State of Rajasthan and another, 2019 SCC OnLine SC 1822, the High Court had rejected the application for anticipatory bail only on the ground that petition under Section 482 Cr.P.C., praying for quashing of FIR, has already been rejected. The Hon'ble Supreme Court held that the order of the High Court cannot be sustained. High Court ought to have considered the application on merits. The fact that petition under Section 482 Cr.P.C. was dismissed for quashing was not conclusive and could not be the reason for rejecting the application.

22. Having considered the aforesaid facts, particularly the facts that the dispute predominantly appears to be of civil nature: that the learned Counsel for the informant has himself submitted that the charge-sheet already having been filed, there is no need of the applicants' custodial interrogation; that the applicants have been made an accused in three other F.I.Rs. lodged by the same informant within a time span of 24 hours; that the applicants were granted interim anticipatory bail by means of an interim order dated 26.05.2023 and there is no allegation of any misuse of the anticipatory bail granted to them, I am of the considered view that the interim order dated 26.05.2023 granting anticipatory bail to the applicants deserves to be made absolute and the application deserves to be allowed.

23. Accordingly, the application is allowed. The interim anticipatory bail already granted to the applicants by means of the order dated 26.05.2023 will continue to remain in force during pendency of the trial.

(Subhash Vidyarthi, J.)

Order Date :- 27.10.2023

Ram.