Allahabad High Court
Saurabh Prakash vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 7 April, 2025
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:19266
Court No. - 14
Case :- APPLICATION U/S 482 No. - 2006 of 2025
Applicant :- Saurabh Prakash
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Vivek Chandra,J.B. Singh
Counsel for Opposite Party :- G.A.
Hon'ble Manish Kumar,J.
1. The instant application under Section 482 Cr.P.C. read with Section 528 Bharatiya Nagrik Suraksha Sanhita, 2023 has been preferred by the applicant with the following main relief:-
"Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the entire proceeding in case no. 40452/2022, charge sheet no. 491/2022 dated 27.09.2022, as well as summoning order dated 18.10.2022 and charge framing order dated 26.04.2023, under Sections 420, 406, 467, 468, 471 IPC & Section 66 I.T. Act, Police Station Hargaon, District Sitapur (State vs. Saurabh Prakash) is pending, before the learned Chief Judicial Magistrate, Sitapur, contained as Annexure No. 1, 2 and 3, in the interest of justice."
2. Learned counsel for the applicant has submitted that the FIR dated 08.08.2019 was lodged against the applicant and another person namely Harjit Singh under Sections 420, 467, 468, 471 IPC & Section 66 of the I.T. Act, 2008, alleging therein that the applicant and the other co-accused persons duped the complainant by taking Rs. 53 lakhs on the assurance of providing job to the son of the complainant in Canada.
3. It is further submitted that the Police after investigation has filed the charge sheet and added Section 406 IPC along with the sections mentioned in the FIR. It is further submitted that prior to framing of charges, no opportunity was provided to the applicant.
4. It is further submitted that the offences under Sections 406 and 420 I.P.C cannot go in the same breath. In support of his submission, learned counsel for the applicants has relied upon the judgment of Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. and Ors. vs. State of Uttar Pradesh and another reported in (2024)10 SCC 690.
5. On the other hand, learned AGA has raised a preliminary objection regarding the maintainability of the present application on the ground of conduct of the applicant and draws the attention of this Court to the bail order dated 23.01.2025 passed by this Court in Crl. Misc. Bail Application No. 4379 of 2024 (Saurabh Prakash vs. State of U.P.), wherein an undertaking was given by the applicant by filing a supplementary affidavit that he would repay the amount of Rs. 53 lakhs which is allegedly misappropriated by him within the period of two months. The relevant paragraph of the bail order is quoted hereinbelow:-
"In the undertaking given in paragraph nos. 6 and 7 of the supplementary affidavit, it is stated that the applicant would repay back the amount of Rs. 53 lakhs which is allegedly misappropriated by him within the period of two months."
6. It is further submitted that in pursuance thereof, the bail has been granted to the applicant but the applicant has not repaid the amount to the complainant as per the undertaking on affidavit before this Court and enjoying the bail order after enlarged on bail.
7. It is further submitted that not only the applicant has failed to fulfil the undertaking given on affidavit but also in the present application, he is giving excuses for not paying Rs. 53 lakhs by stating that his wife has eloped so it is very difficult for him to manage the finances.
8. After hearing learned counsel for the parties, going through the record of the case and the law laid down by Hon'ble Apex Court in the case of Delhi Race Club (1940) Ltd. and Ors. (supra), the offences under Sections 406 and 420 I.P.C cannot go in the same breath and framing of charges by the court concerned under both the Sections is against the law laid down by the Hon'ble Apex Court but at the same time, the conduct of the applicant that for getting the bail, a supplementary affidavit was filed by him with an undertaking to repay the amount or Rs. 53 lakhs which is allegedly misappropriated by him, within a period of two months and on the basis of the said undertaking, the bail has been granted to the applicant with a particular condition mentioned in the bail order, which is quoted hereinbelow:-
"(1) If the applicant does not repay back the above-said amount to the informant, he shall surrender before the Chief Judicial Magistrate concerned. "
9. On being asked the learned counsel for the applicant as to whether the applicant has surrendered before the Chief Judicial Magistrate after the expiry of two months' period in March, 2025, he has replied that the applicant has not surrendered before the Chief Judicial Magistrate concerned.
10. The exercise of power under Section 482 Cr.P.C/528 B.N.S.S. is used sparingly. It is necessary that the applicant should approach the Court with clean hands and without flouting any condition of a judicial order casting upon him a duty to act in compliance of such condition put by the Court. In this case, the applicant has blatantly flouted the condition while granting him bail, according to which he was duty bound to surrender before the Chief Judicial Magistrate concerned, in case of non payment of amount to the complainant within a certain period as per his own undertaking given by filing the supplementary affidavit, as discussed above.
11. The objection of the learned A.G.A cannot be brushed aside and deserves to be taken note of.
12. In circumstances stated above the applicant shall be entitled for hearing of merits after complying with condition put in the bail order passed by the High Court.
13. Therefore, the applicant must surrender as per condition of the bail order as early as possible and inform this Court by filing an affidavit with proof of surrender and the case shall be listed thereafter for hearing of the matter on merits.
Order Date :- 7.4.2025
Nitesh
