Prateek Mishra S/O Shri Sandeep ... vs State Of Rajasthan
2022 Latest Caselaw 7451 Raj/2

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

    S.B. Criminal Miscellaneous 2nd Bail Application No.15862/2022

Prateek Mishra S/o Shri Sandeep Mishra, aged about 34 Years, R/o H.
No.10-A Ghatia Mishran, Police Station Kotwali, District Itawa, Uttar
Pradesh
          (At Present accused confined in Central Jail, Jaipur)

                                                           ----Accused-Petitioner

                                    Versus

State of Rajasthan through Public Prosecutor

                                                                 ----Respondent


For Petitioner(s)         :    Mr. Swadeep Singh Hora, Advocate with
                               Mr. T.C. Sharma, Advocate
For Respondent(s)         :    Mr. M.K. Sheoran, Public Prosecutor
                               Mr. Suresh Kumar Sahni, Advocate with
                               Mr. Ram Mohan Sharma, Advocate for
                               the Complainant


       HON'BLE MR. JUSTICE CHANDRA KUMAR SONGARA
                                    Order

 Date of Order                         ::::            24th November, 2022
                                     ***

Instant 2nd bail application has been preferred under Section

439 of the Code of Criminal Procedure, 1973 for grant of regular bail to

the petitioner, namely Prateek Mishra in a case arising out of F.I.R.

No.132/2021 registered at Police Station Ashok Nagar, Jaipur City

(South) for offences punishable under Sections 420, 467, 468, 471,

201, 204 & 120-B of Indian Penal Code and under Sections 66-C, 71 &

74 of Information Technology Act, 2000.

Submissions of learned counsel appearing for the accused-

petitioner are that in the present case, neither the name of petitioner

has been mentioned nor any role has been assigned to him in the F.I.R.

and he is not even the beneficiary of litigation pending. The petitioner

was arrested on 06.12.2021 and since then he is behind the bars.

(2 of 7) [CRLMB-15862/2022]

Supplementary charge-sheet has been filed. All the alleged offences are

triable by 1st Class Magistrate. As per contents of F.I.R., no allegation

has been levelled against the petitioner nor any offence, prima-facie, is

made out against him. Charges have been framed against him on

30.03.2022. Despite lapse of sixty-days, the trial against him has not

been concluded. Thus, looking to the mandate of Section 437 (6) of

Cr.P.C. and the fact that the co-accused/persons have already been

enlarged on bail by this Court vide its order dated 30.09.2022, the

present petitioner may be granted benefit of bail on the ground of

parity.

Learned counsel appearing for the accused-petitioner has

placed reliance upon the following bail orders passed by the Co-ordinate

Bench of this Court:- (1) Umesh Singhal Vs. State of Rajasthan, (SB

CRLMB No.10671/2021 dt. 08.03.2022), (2) Ducia Bogdan Nicolae &

another Vs. State of Rajasthan (SB CRLMB No.7376/2022 dt.

18.05.2022) (3) Hasibur Rahman Vs. State of Rajasthan, (SB CRLM4 th

Bail No.2372/2022 dt. 18.07.2022) and (4) Neetin Shah Vs. State of

Rajasthan, in SB CRLMB No.5759/2022 dt. 24.08.2022.

Learned Public Prosecutor appearing for the State and the

learned counsel appearing for the complainant, have strongly opposed

the bail application.

It has been contended by the learned counsel appearing for

the complainant that the anticipatory bail application was filed on behalf

of co-accused, namely Surendra Singh before the Court of Additional

Sessions Judge No.1, Jaipur Metropolitan-I, wherein it has been averred

in Para-7 that he came under the influence of Advocate Prateek Mishra

due to his greed and to secure a better future for his family, he took

loans on his house and has given Rs.15,00,000/- to the Advocate.

(3 of 7) [CRLMB-15862/2022]

Learned counsel appearing for the complainant has further

drawn attention of this Court towards the bail order dated 10.09.2021

passed by Co-ordinate Bench of this Court in the case of Prateek Mishra

(S.B. Criminal Misc. Bail Application No.12717/2021), wherein while

dismissing the anticipatory bail application of the petitioner, it has been

observed as under :-

"A perusal of the case diary reflects that besides the disclosure statements of the co-accused, showing complicity of the present petitioner in the offence, other incriminating evidence also, such as discovery of incriminating evidence on the information furnished by co-accused under Section 27 of the Act of 1872, copies of various writ petitions filed by the petitioner as counsel wherein favourable orders have been forged. Forging of the order of this Court is a serious matter and in view of the availability of incriminating material against the petitioner in the case diary, this Court is not satisfied that custodial interrogation of the petitioner is not warranted. In so far as the law laid down by the Hon'ble Apex Court in case of Gurbaksh (supra) is concerned, this Court is in respectful agreement with the same; but, the same has no applicability in the present case."

Lastly, it has been submitted by learned counsel appearing

for the complainant that the provisions of Section 437 (6) of Cr.P.C. are

not mandatory as Section 167 (2) of Cr.P.C., and, therefore, looking to

the gravity of offences, the present bail application of the petitioner be

rejected.

Heard learned counsel appearing for the accused-petitioner,

learned Public Prosecutor appearing for the State and learned counsel

appearing for the complainant. Perused the material made available on

record and the bail orders cited herein-above.

In the instant case, the first bail application of the petitioner

was dismissed as withdrawn by this Court vide its order dated

08.09.2022 with liberty given to the petitioner to file afresh application

before the trial Court under Section 437 (6) of Cr.P.C.

As per submissions of learned counsel appearing for the

accused-petitioner, the name of the petitioner does not find place in the

impugned F.I.R. and the petitioner is behind the bars since 06.12.2021.

(4 of 7) [CRLMB-15862/2022]

As per rejection bail order, the petitioner has criminal antecedents of

one case of F.I.R. bearing No.112/2021 registered at Police Station

Sarpau, Hathras (U.P.) for offences punishable under Sections 420 and

406 of I.P.C.

Section 437 (6) of Cr.P.C. reads as under:-

"(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs."

Co-ordinate Bench of this Court in the case of Jitendra @

Jeetu Vs. State of Rajasthan, (S.B. Criminal Revision Petition

No.274/2011) decided on 05.05.2011, held as under :-

"Unlike, Section 167(2) Cr.P.C. which grants a statutory bail, by operation of law, under Section 437(6) Cr.P.C. it is not mandatory that the bail has to be granted."

This Court finds that while rejecting the bail application of

the petitioner under Section 439 of Cr.P.C., the Court of Additional

Sessions Judge, No.4, Jaipur Metropolitan-I vide its order dated

10.10.2022 specifically observed that the charges have been framed

against the petitioner on 30.03.2022, statements of five prosecution

witnesses have been recorded and sincere efforts have been made for

early disposal of the case. Therefore, according to the Court, cogent

reasons have been given.

Furthermore, the bail applications of co-accused, namely

Smt. Mahendri, Smt. Beena, Vinod Kumar son of Harprasad Jatav,

Jabbar Singh, Mukesh Kumar, Veeresh Singh, Sanjeev Kumar and Vinod

Kumar son of Champat Kumhar have already been granted by this Court

vide its order dated 30.09.2022.

(5 of 7) [CRLMB-15862/2022]

With regard to required portion of the charge-sheet of Vinod

Kumar & Others, at Page Nos.7 & 8 of aforesaid order dated 30.09.2022,

it has been observed as under :-

(i) "Accused Vinod Kumar S/o Champat, Smt. Beena, Vinod Kumar S/o Harprasad, Smt. Mahendri, Jabbar Singh, Sanjiv Kumar, Munesh Kumar and Veeresh Singh have been arrested vide arrest memos. During investigation, arrested accused Vinod Kumar S/o Champat, Vinod S/o Harprasad, Jabbar Singh, Sanjiv Kumar, Munesh Kumar and Viresh Singh gave separate following information voluntarily:-

"There is gang of people who cheats and dishonestly induces delivery of property in the name of getting compensation for land for poor person like me. Main leader of this gang is Sandeep Mishra and his two sons Prateek Mishra and Divyansh Mishra alongwith Sukhram Pal, Virendra Arya, Balraj Chand and many others miscreantsare members in his gang. False and forged writs and other documents have been prepared by Prateek Mishra in his laptop as per directions of Sandeep Mishra and filed in the High Court after getting my signatures on the aforesaid documents. Those three-father and two sons, have obtained money from me through cash/bank. Forged order of High Court alongwith the original order is lying with Sandeep Mishra, Prateek Mishra, Divyansh Mishra and I can get these orders recovered from their residence in Itawa, Agra (U.P.)."

(ii) "During investigation, arrested accused Munesh Kumar voluntarily gave following information "original order of High Court was given to me by advocate Prateek Mishra and when this case was instituted, Prateek Mishra and his father Sandeep Mishra took that order from me. I took pictures of that order on my mobile which are secured as it is, in my phone. I can get my phone recovered through my friend Vinod's son Neeraj."

(iii) "During investigation, arrested accused Vinod Kumar S/o Champat, Vinod S/o Harprasad, Jabbar Singh, Sanjiv Kumar, Munesh and Veeresh Singh gave separate following information voluntarily "advocate Prateek Mishra came to me with original order of compensation and delivered it to me and said that order for your compensation has been passed and here is the order. I kept this order in safe custody and when this case was instituted, Prateek Mishra and his father Sandeep Mishra came to me to take that order from me. Forged order of High Court alongwith the original one is lying with Prateek Mishra and his father Sandeep Mishra and it can be recovered from them."

(iv) "It has been revealed during investigation that in this matter non-arrested accused Prateek Mishra and others are a part of gang which commits cheating through planning by targeting innocent persons of poor class. Main leader of this gang is Prateek Mishra, who is an advocate by profession in UP and Sukhram Pal Singh is his agent (Dalal), who is a retired peon from Govt. Dept. Information Center, Gautambudh Nagar, Greter Noida, U.P."

(v) "In this matter also, Prateek Mishra and others through their agent Sukhrampal Singh has lead the petitioners (1) Smt. Beena Devi, (2) Mahendri Devi, (3) Jabbar Singh, (4)

(6 of 7) [CRLMB-15862/2022]

Vinod Kumar S/o Champat, (5) Vinod Kumar S/o Harprasad, (6) Sanjiv Kumar, (7) Munesh Kumar, (8) Veeresh Singh, (9) Surendra and others to file false and forged writs in Rajsthan High Court by entrapping them. This gang has collected around 1 to 1.11 crores from the aforesaid petitioners. His father Sandeep Mishra is equal partner and participator in the gang of his son Prateek Mishra. Sandeep Mishra is an advocate at Supreme Court, Delhi and completely misuses his position."

(vi) "Investigation under Section 173(8) of Cr.P.C. is still pending against accused Prateek Mishra and Surendra and other co-accused Sandeep Mishra & Sukhrampal Singh and ors."

Now, supplementary charge-sheet has been filed against the

present petitioner - Prateek Mishra, wherein it has been mentioned that

the accused in custody Prateek Mishra has voluntarily given

information, during investigation to S.H.O. Vikram Singh, Police Station

Ashok Nagar, Jaipur City (South) that laptop used by him to make

forged orders of High Court has been kept hidden at Jairam Bagh, Dayal

Bagh, Agra (U.P.) and he can get it recovered by going there. Upon

attempt of recovery made out of information voluntarily furnished by

the accused, the accused made aware that after the case was

registered, original forged orders of High Court, record of settlement

(jamabandi), land allotment letters and the laptop used in preparing

these aforesaid fake documents, have been destroyed by him due to

fear of the Police.

While considering an application for bail, the Court has to

consider the relevant factors, including nature and gravity of accusation,

modus-operandi adopted by the accused, status-report filed by the

Investigating Officer and criminal antecedents of the accused etc., each

case is to be decided on its own merits.

Hon'ble Apex Court in the case of Centrum Financial

Services Limited Vs. State of NCT of Delhi and another, 2022

Cr.L.R. (SC) 248, while quashing & setting aside the impugned

judgment & order passed by the High Court releasing respondent No.2

(7 of 7) [CRLMB-15862/2022]

on bail for offence punishable under Sections 409, 420, 467, 468, 471

and 120-B of I.P.C., at Para No.13, has held as under :-

"13. From the aforesaid it emerges that while releasing Respondent no.2 on bail, the High Court has not at all considered the relevant factors including the nature and gravity of accusation; the modus operandi and the manner in which the offences have been committed through shell companies and creating the false/forged documents and/or misusing the PAN Cards, Aadhar Cards and KYCs of the employees and showing them as Directors of the fake and shell companies. As observed hereinabove, the High Court has not at all considered and taken into consideration the status report and the evidence collected during the course of the investigation. Therefore, the impugned judgment and order passed by the High Court releasing Respondent No.2 on bail is unsustainable as the High Court while releasing Respondent No.2 on bail has not exercised the jurisdiction judiciously and has not considered the relevant factors which are required to be considered while grant of bail."

Looking to the overall facts and circumstances of the case,

gravity of the offence, factual report and criminal antecedents of the

petitioner, but without expressing any opinion on the merits/demerits of

the case, I deem it not proper to enlarge the present petitioner on bail.

Accordingly, the 2nd bail application filed on behalf of

petitioner under Section 439 of Cr.P.C. is dismissed.

(CHANDRA KUMAR SONGARA),J.

ashok/122

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