Ajay Gupta vs State Of U.P. Thru. Prin. Secy. Home ...
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Allahabad High Court

Ajay Gupta vs State Of U.P. Thru. Prin. Secy. Home ... on 11 April, 2025

Author: Manish Mathur

Bench: Manish Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:20810
 
Court No. - 13
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 272 of 2025
 
Applicant :- Ajay Gupta
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And Another
 
Counsel for Applicant :- Salil Kumar Srivastava,Rahul Srivastava,Varun Kumar Gupta
 
Counsel for Opposite Party :- G.A.,Aarohi Bhalla,Kartikeya Yadav,Sunil Kumar Singh
 

 
Hon'ble Manish Mathur,J.
 

1. Heard Mr. Salil Kumar Srivastava, learned counsel for applicant, Mr. Ran Vijay Singh, learned A.G.A. for opposite party no.1-State, Mr. Aarohi Bhalla and Mr. Sunil Kumar Singh, learned counsel for complainant- opposite party no.2 and perused the record.

2. Second Anticipatory Bail Application has been filed with regard to FIR/case crime No.0133 of 2022, Charge-Sheet No.03 of 2024, under Sections 420, 406, 120-B, 467, 468, 471, 506 IPC, registered at Police Station Sarojini Nagar, Lucknow.

3. As per contents of first information report, applicant had been engaged as accountant in the firm by the informant and allegedly siphoned off various amounts on various dates commencing from 2017 onwards, which were credited in his own account.

4. It has been submitted that applicant has been falsely implicated in the charges levelled against him. Learned counsel for applicant also submits that the earlier Anticipatory Bail Application No.680 of 2022 was disposed of vide order dated 12.05.2022 granting liberty to applicant to surrender before the Court concerned and apply for regular bail. It is submitted that due to circumstances subsequent to 12.05.2022, the present Second Anticipatory Bail Application is being filed and is maintainable.

5. Learned counsel for opposite parties have raised a preliminary objection regarding maintainability of Second Anticipatory Bail Application in view of the fact that the First Anticipatory Bail Application once disposed of vide order dated 12.05.2022 granting liberty as mentioned aforesaid, which was not availed of by applicant, Second Anticipatory Bail Application would not be maintainable.

6. From a perusal of record, it appears that with regard to the allegations levelled against the applicant, complainant Amit Kumar Singh is owner of two petrol pumps and in which the applicant was engaged as a part time typist/data entry operator and allegedly embezzled the aforesaid amounts. With regard to said allegations, two FIRs bearing Case Crime No.133 of 2022, under Sections 420, 406, 120-B, 467, 468, 471 and 506 IPC was lodged with another FIR registered as Case Crime No.460 of 2022 also being lodged under the same sections. It also transpires that with regard to Case Crime No.133 of 2022, Anticipatory Bail was sought by applicant before trial court in Anticipatory Bail Application No.2577 of 2022 which was rejected on 19.04.2022 whereafter the First Anticipatory Bail Application was filed before this Court bearing No.680 of 2022 which has been disposed of vide order dated 12.05.2022 as indicated herein above granting the said liberty.

7. It also appears that with regard to Case Crime No.460 of 2022, the applicant sought Anticipatory Bail Application No.1856 of 2022 which was allowed vide order dated 09.11.2022 granting anticipatory bail till filing of police report under Section 173(2) Cr.P.C. The said order was thereafter challenged by complainant in Special Leave to Appeal (Criminal) bearing No.1649 of 2023. During the course of pendnecy of the aforesaid Special Leave to Appeal, a non-bailable warrant was issued by the Supreme Court vide order dated 09.08.2024 specifically indicating the fact that since the respondent therein (applicant) herein has failed to surrender in pursuance of High Court's order dated 12.05.2022, non-bailable warrant was being issued which was to be executed through the Jurisdictional Assistant Commissioner of Police. It was also directed that after applicant's arrest he would be produced before the nearest Magistrate who shall ensure appearance of the accused before the Supreme Court on the next date fixed. Direction was also issued that the Magistrate may release the accused from custody after obtaining bond.

8. It appears that in pursuance of such directions, the applicant was taken into custody on 25.08.2024 apparently in both the case crime numbers in light of directions issued by Hon'ble the Supreme Court and was thereafter granted bail vide order dated 28.08.2024 by the Magistrate concerned subject to the condition that he would ensure physical presence before Supreme Court in person on 09.09.2024, which was the next date fixed. It also transpires that during the course of arguments before Hon'ble the Supreme Court, it was not informed on behalf of State that investigation in the said case crime number had already concluded on 12.07.2024 and therefore direction was issued on 30.09.2024 to the applicant to make himself available before investigating officer on 07.10.2024. It is the submission of learned counsel for applicant that in compliance of the said order, applicant appeared before the investigating officer but his attendance was not accepted leaving him no option but to send his compliance through registered post on 08.10.2024. The aforesaid special leave petition was thereafter disposed of vide order dated 03.12.2024 observing that the statement of accused (applicant) has already been recorded and therefore the Anticipatory Bail which was granted by the High Court need not be kept pending any longer.

9. In pursuance thereof, the applicant filed an application dated 21.10.2024 for extension of Anticipatory Bail Application order dated 09.11.2022 before magistrate concerned which was rejected vide order dated 29.10.2024 on the ground that such power of extension would be available only with the High Court which granted the initial order. The applicant thereafter preferred misc. anticipatory bail application no.2548 of 2024 seeking extension of earlier Anticipatory Bail Application order dated 09.11.2022.

10. The said Anticipatory Bail Application No.2548 of 2024 was thereafter dismissed as withdrawn vide order dated 20.01.2025 granting liberty to the applicant to file a fresh. In pursuance thereof, the applicant filed Misc. Anticipatory Bail Application No.89 of 2025 which was allowed by means of order dated 19.02.2025 granting Anticipatory Bail with regard to Case Crime No.460 of 2022.

11. However the events with regard to Case Crime No.133 of 2022 stood on a completely different footing whereunder the Anticipatory Bail Application No.680 of 2020 was disposed of vide order dated 12.05.2022 granting liberty to applicant to file regular bail. However despite such liberty having been granted, the same was not availed of by the applicant due to which a non-bailable warrant was issued against him whereafter proclamation under Section 82 Cr.P.C. was issued on 04.03.2023 and FIR under Section 174 A IPC was lodged on 06.07.2023 registered as Case Crime No.293 of 2023. Subsequently order under Section 83 Cr.P.C. was issued on 12.07.2023 and charge-sheet was filed in Case Crime No.133 of 2022 while the applicant was absconding.

12. The registration of FIR under Section 174 A IPC was thereafter challenged by applicant before this Court in application under Section 482 Cr.P.C. bearing no.6232 of 2024 in which the same was quashed whereafter Second Anticipatory Bail was applied for by applicant before trial court which was registered as Anticipatory Bail Application No.8005 of 2024 which was rejected vide order dated 15.10.2024 whereafter the present Anticipatory Bail Application has been filed.

13. Learned counsel for opposite parties therefore submit that since the applicant has failed to cooperate in the investigation in Case Crime No.133 of 2022, he does not deserve any indulgence particularly in view of the fact that once the earlier Anticipatory Bail Application No.680 of 2022 had already been rejected vide order dated 12.05.2022 granting liberty to applicant to file regular bail application, the present Second Anticipatory Bail Application would in fact amount to a review of the earlier order passed, which is impermissible under provisions of Cr.P.C.

14. Learned counsel for opposite parties has also adverted to the fact that proceedings before Hon'ble the Supreme Court in fact pertained to Case Crime No.460 of 2022 and not Case Crime No.133 of 2022 and even otherwise the order-sheet in the said Special Leave Petition clearly indicates that non-bailable warrant was issued by Hon'ble the Supreme Court against the applicant whereafter only he appeared after obtaining bail. It is therefore submitted that the conduct and bona fide of the applicant are not clear due to which no indulgence should be granted to him.

15. Learned counsel has placed reliance on judgment rendered in the case of Srikant Upadhyay versus State of Bihar; (2024)3 S.C.R 421.

16. It is also submitted that the aspect of quashing of Case Crime No.293 of 2023, under Section 174A IPC would be of no consequence since the proceeding under Sections 82 and 83 Cr.P.C. were not quashed by the judgment and order dated 06.07.2023 in the said proceeding under Section 482 Cr.P.C. bearing No.6232 of 2024.

17. It is also submitted by learned counsel for opposite parties that arrest of applicant in pursuance of directions issued by Hon'ble the Supreme Court were only for the purposes of ensuring his presence before the Supreme Court and became meaningless once the Special Leave to Appeal was disposed of.

18. Learned counsel for applicant has refuted submissions advanced by learned learned counsel for opposite parties with the submission that in pursuance of directions issued by Hon'ble the Supreme Court, the applicant was taken into custody whereafter he was granted regular bail vide order dated 28.08.2024 after taking remand of applicant under Section 309 Cr.P.C. It is also submitted that the aforesaid bail order cannot be construed only for purposes of ensuring appearance before Hon'ble the Supreme Court and it is in these circumstances that earlier Anticipatory Bail Application no.2548 of 2024 had been filed seeking extension of the Anticipatory Bail order dated 09.11.2022.

19. It is also submitted that the FIR lodged under Section 174 A IPC is directly referable to the proclamation order passed under Sections 82 & 83 Cr.P.C. and therefore once the aforesaid FIR bearing Case Crime No.293 of 2023 was quashed by this Court vide order dated 16.07.2023 passed in application under Section 482 Cr.P.C. No.6232 of 2024, it could be deemed that the aforesaid proclamation and order under Sections 82 and 83 Cr.P.C. also stood quashed.

20. Learned counsel has also adverted to the case diary to indicate that applicant even as per details indicated in case diary has cooperated during the course of investigation by submitting his written submissions before investigating officer and therefore also there was no occasion for opposite parties to have issued any proclamation or order under Sections 82 and 83 Cr.P.C. Learned counsel also submits that once the order dated 09.11.2022 was challenged before Hon'ble the Supreme Court which took cognizance of the same with proceedings finally culminating in disposal of Special Leave Petition, there was no occasion for the applicant to have acted in pursuance of the order passed by this Court earlier dated 12.05.2022 in Anticipatory Bail Application No.680 of 2022.

21. Upon consideration of submissions advanced by learned counsel for parties, prima facie, it appears that with regard to allegations levelled against applicant, two case crimes bearing no.133 of 2022 and 460 of 2022 were registered against the applicant. So far as Case Crime No.460 of 2022 is concerned, there is no dispute with regard to the fact that earlier anticipatory bail was sought and was granted till filing of charge-sheet whereafter special leave petition was filed before Hon'ble the Supreme Court and was disposed of as well whereafter the subsequent Anticipatory Bail Application No.89 of 2025 was allowed vide order dated 19.02.2025.

22. So far as case crime no.133 of 2022 is concerned, circumstances with regard to cooperation of applicant in investigation charts a completely different course since the Anticipatory Bail Application No.680 of 2022 was disposed of vide order dated 12.05.2022 granting liberty to applicant to apply for regular bail. However it is evident from record that the applicant failed to comply with direction issued which were on the basis of submission made by learned counsel for applicant himself. As indicated hereinabove, subsequent thereto, non-bailable warrant was issued on 04.01.2023 with proclamation under Section 82 Cr.P.C. being issued on 04.03.2023 and FIR being lodged under Section 174 A IPC registered as Case Crime No.293 of 2023 on 06.07.2023 and order under Section 83 Cr.P.C. being issued on 12.07.2023 whereafter the anticipatory bail application preferred before trial court has also been rejected.

23. The said facts are clearly indicative of non-cooperative attitude of applicant with regard to investigation in Case Crime No.133 of 2022.

24. So far as the aspect recorded in case diary with regard to written submission of applicant are concerned, it is evident that the same took place in the year 2022 whereafter apparently, the applicant failed to produce himself for investigation leading to coercive measure being adopted against him.

25. It is also evident from a perusal of Section 174A IPC that the same pertains to non- appearance in response to a proclamation under Section 82 Cr.P.C. Evidently the said provision is a consequence of failure of any person to appear in pursuance of the proclamation issued under Section 82(1) Cr.P.C.

26. It is also evident from the order dated 16.07.2023 passed by this Court in proceedings under Section 482 Cr.P.C. bearing Case Crime No.6232 of 2024 that the proceedings under Section 174A IPC only were quashed on the settled proposition that the FIR was unsustainable since it was initiated only on the basis of police report and not written complaint of the court concerned. The order does not advert at all to proceedings initiated against applicant under Sections 82 and 83 Cr.P.C. Therefore the submission of learned counsel for applicant that the order dated 16.07.2024 would be deemed to have quashed the proceedings under Sections 82 and 83 Cr.P.C. is hereby rejected.

27. It is also evident that while granting anticipatory bail to applicant in Anticipatory Bail Application No.89 of 2025 pertaining to Case Crime No.460 of 2022, Coordinate Bench of this Court has sought for report by the Magistrate concerned and it has been specifically indicated that the report was thereafter submitted indicating that remand taken earlier of applicant in pursuance of directions of Hon'ble the Supreme Court and subsequent bail granted on 28.08.2024 was only for the limited purpose of ensuring presence of applicant before Hon'ble the Supreme Court. In paragraph 11 of the order, the Coordinate Bench has specifically recorded a finding that the applicant is not on regular bail.

28. Even otherwise if submission of learned counsel for applicant is taken ex facie to be correct that the bail order granted earlier on 28.08.2024 can be deemed only as regular bail, there would be no occasion to entertain the present anticipatory bail application at all.

29. It is also a factor to be noted that once Anticipatory Bail Application No.680 of 2022 pertaining to Case Crime No.133 of 2022 has already been disposed of vide order dated 12.05.2022 granting liberty to applicant to approach trial court for regular bail, entertaining the present anticipatory bail application would amount to review or overruling of the said order dated 12.05.2022, which is impermissible in terms of provisions of Code of Civil Procedure or even the BNSS.

30. The aforesaid aspect has also been dealt with by Coordinate Bench of this in Anticipatory Bail Application No.1179 of 2023, Suraj Harijan versus State of U.P. & Ors. which was decided by means of judgment and order dated 31.07.2024 on the same aspect that Second Anticipatory Bail Application would be maintainable only where there is change in circumstances.

31. In the present case, applicant has failed to demonstrate any change in the circumstances which would require this Court to ignore the earlier order dated 12.05.2022 passed in Anticipatory Bail Application No.680 of 2022.

32. The above discussion clear indicates the aspect that applicant has failed to cooperate in the investigation with regard to Case Crime No.133 of 2022 leading to coercive action being taken against him.

33. Hon'ble the Supreme Court also in the case of Srikant Upadhyay (supra) has also enunciated the law that where an accused does not cooperate during the course of trial leading to coercive measures being adopted against him, such a person may not be entitled for grant of anticipatory bail and should in such circumstances apply for regular bail.

34. Considering aforesaid facts and circumstances, this Court does not find any good ground to entertain the present Second Anticipatory Bail Application which is accordingly rejected.

Order Date :- 11.4.2025

Subodh/-