Rakesh Sharma vs State Of U.P. And Another
2024 Latest Caselaw 18139 ALL

Allahabad High Court

Rakesh Sharma vs State Of U.P. And Another on 21 May, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:93101
 
Court No. - 85
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10973 of 2023
 

 
Applicant :- Rakesh Sharma
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Kartikeya Saran,Suchita Mehrotra
 
Counsel for Opposite Party :- G.A.,Prashant Pandey
 

 
Hon'ble Nalin Kumar Srivastava,J.
 

1. Heard learned counsel for the applicant, learned AGA, learned counsel for the informant and perused the material available on record.

2. This application for anticipatory bail has been filed by applicant- Rakesh Sharma in connection with Criminal Case No. 6087 of 2021 under sections 419, 420, 467, 468, 471 and 506 IPC, P.S. Kotwali, District- Varanasi.

3. As per prosecution case a registered developers agreement was executed between Ashok Kumar Gupta, Ashish Kumar Gupta, Dinesh Kumar Gupta and Jitendra Kumar Gupta, the co-owners of house no. 62/148AK, B2/149 Mohalla Sapt Sagar, Varanasi on the one hand and Jai Shree Developers through its owner Rakesh Sharma on 4.5.2013 and the role of the present applicant as per the said registered agreement was to develop the aforesaid property of the informant and also to construct multistory building and shopping complex over the said land. It was also agreed upon that 40% of the constructed area will fall under the ownership of the informant and his family members and the rest 60% constructed area will be under the ownership of builders and in this way the ownership of total buildup area was to be divided amongst the accused applicant (developers) and the land owners. The applicant failed to complete the construction work within the stipulated time of two years and also of an additional period of 6 months thereby causing undue harm to opposite party no.2 and his family members and he also managed to procure the forged signatures of opposite party no.2 and his family members on various affidavits and documents to take the peaceful possession of the build up area, which was not fallen into his share. The FIR was lodged in this matter and investigation started and now the charge sheet has been submitted.

4. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Charge sheet in the matter has been submitted. It is further submitted that the applicant after completing the necessary formalities from the government authorities and approval from VDA invested a huge amount to construct the apartments over the land under reference. It is further submitted that after the death of the father of the informant his sons hatched the conspiracy against the accused applicant and started to sell out the properties under the rights of the accused applicant according to the agreement and they tried to extort money from the accused applicant and they also hatched him by interfering in to the sale of applicant's share on apartments and also pressurized him to withdraw the agreement. It is also submitted that the FIR of the case was lodged with false and fabricated facts. It is further submitted that after filing of the charge sheet and passing of the summoning order the accused applicant approached this Court through an Application U/S 482 Cr.P.C. No. 21869 of 2022 but no relief was granted to him and a direction was issued to the trial Court to consider the bail application of the accused applicant, if he appears before the Court vide order dated 14.9.2022 and the said application was disposed of accordingly. It is further submitted that as per the conditions of the builders agreement the accused applicant executed multiple other sale deeds and no legal impediment arose in their execution. It is further submitted that no fraud or wrongful gain was made by the accused applicant. It is further submitted that a civil suit is also pending before the competent civil Court filed by the accused applicant for the relief of permanent injunction and on the other hand the informant of the case has himself filed a civil suit for the cancellation of MOC before the civil Court. It is further submitted that the matter is absolutely of civil in nature and it is under judicial scrutiny before the competent civil Court. During course of investigation the accused applicant has been cooperative. After submission of the charge sheet no punitive process has been issued against him so far and he is not declared a proclaimed offender. In case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

5. Learned A.G.A. and learned counsel for the informant has opposed the prayer for anticipatory bail. It has been argued that a huge monitory loss has been caused by the accused applicant to the informant and his family members and he has made a gross violation of the conditions made in the builders agreement and he is not entitled for anticipatory bail.

6.In the present case charge sheet has been submitted and nothing has been brought to the notice of this Court to the fact that during investigation the accused applicant has not cooperated with the I.O. of the case. After submission of the charge sheet now no custodial interrogation is required. Civil Suits are already pending in the present matter.

7. Although the charge sheet has been submitted in this matter but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

8. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

9. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

10. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex Court has held that :

"11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87 Cr.P.C that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

11. In sofar as the present case is concerned and the general principles under Section 170Cr.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 are itself sufficient to entitle 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 not 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."

12. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till conclusion of trial in the matter.

13. The anticipatory bail application is allowed accordingly.

14. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned 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 to any police officer or tamper with the evidence.

ii. The applicant shall not pressurize/ intimidate the prosecution witness.

iii. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

iv. The applicant shall not leave India without prior permission of the Court and if he has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.

15. In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law.

Order Date :- 21.5.2024

Fhd