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2024 DIGILAW 279 (ALL)

Rajesh Kumar v. State of U. P.

2024-01-25

SAMEER JAIN

body2024
JUDGMENT : 1. Heard Ms. Chhaya Gupta, learned counsel for the applicant and Sri Ravi Kant Kushwaha, learned A.G.A. for the State. 2. The present anticipatory bail application has been filed on behalf of the applicant in F.I.R./Case Crime No. 0646 of 2023, under Sections 420, 467, 468, 471 IPC, Police Station Sadar Bazar, District Shahjahanpur, with a prayer to enlarge him on anticipatory bail. Brief facts 3. FIR of the present case was lodged against applicant and eight others on 19.09.2023 and according to the FIR, applicant was District Social Welfare Officer, Shahjahanpur and he with the help of his four private computer operators misappropriated the public money of Rs.2 crores 52 lacs 39 thousand with the help of touts and mediators by changing bank accounts of old age pensioners. Submissions advanced on behalf of applicant 4. Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and applicant never misappropriated any money. She further submitted that applicant was transferred to Shahjahanpur in the month of December, 2021 and on the direction of Director Social Welfare Officers, Lucknow, U.P., the work was given to all the Social Welfare Officers to link the old age pensioners' registration with Aadhar for authentication and when applicant being District Social Welfare Officer started to link old age pensioners' registration with Aadhar then he found certain irregularities and on 21.02.2023, he himself informed in writing about irregularities to the Branch Manager, Baroda U.P. Bank, Karkor, Jayantipur, Shahjahanpur and requested to stop the withdrawal of the amount from these accounts of old age pensioners and thereafter on the basis of a news item published in a news paper with regard to irregularities in the account of old age pensioners, District Magistrate constituted a five members committee to enquire the matter and after enquiry committee found that out of 21 old age pensioners' account only accounts of 9 old age pensioners were changed and on the basis of the report of five members committee, applicant was suspended from his service on 06.04.2023. 5. She further submitted that a subsequent enquiry was also conducted by three members committee on the letter issued by one of the Member of Legislative Assembly and during enquiry, the three members committee found that there was a misappropriation of Rs. 5. She further submitted that a subsequent enquiry was also conducted by three members committee on the letter issued by one of the Member of Legislative Assembly and during enquiry, the three members committee found that there was a misappropriation of Rs. 2 crores 52 lacs 39 thousands and on the basis of report of three members committee dated 24.05.2023, the FIR of the present case was lodged against the applicant and others. 6. She further submitted that as earlier five members committee found irregularities with regard to only nine accounts of old age pensioners, therefore, the subsequent committee report dated 24.05.2023 does not appear to be correct one. She further submitted that applicant never misused his position and he was the person, who pointed out the irregularities in accounts and also requested to stop the payments from these accounts. She further submits, however, due to pressure of work applicant had to appoint two private computer operators but merely on this basis, it cannot be said that he siphoned off the public money of more than Rs. 2.5 crores with their help. 7. She further submitted that applicant was appointed in the year 1998 and till date, his service record was clean and no complaint was ever lodged against him. She further submitted that applicant is a responsible public servant and he is ready to cooperate with the investigation and if investigation is conducted properly then applicant is hopeful that no charge sheet can be filed against him as he did not commit any offence. 8. She further submitted that investigation of the case is still pending and police is trying to arrest the applicant. She further submitted that there is no need of the arrest of the applicant. She further submitted that if there is no need of the arrest of an accused then in spite of the fact that Investigating Officer is having power to arrest an accused, the accused should not be arrested. 9. She further submitted that personal liberty of a person is a fundamental right provided under Article 21 of Constitution of India. She placed reliance on the judgment of the Apex Court in case of Siddharth Vs. State of Uttar Pradesh and another (2022) 1 SCC 676 10. 9. She further submitted that personal liberty of a person is a fundamental right provided under Article 21 of Constitution of India. She placed reliance on the judgment of the Apex Court in case of Siddharth Vs. State of Uttar Pradesh and another (2022) 1 SCC 676 10. She further submitted that as per the government orders dated 19.07.2005 and 24.05.2012, it is mandatory to take permission of appointing authority of the public servant before lodging any FIR against him and in the present matter, in spite of the fact that applicant is public servant no such permission from his appointing authority was taken before lodging FIR of the present case, therefore, even FIR of the present case lodged against the applicant is bad. Submissions advanced on behalf of State 11. Per contra, learned AGA vehemently opposed the prayer for anticipatory bail and submitted that applicant was District Social Welfare Officer posted at District Shahjahanpur and he misused his position and misappropriated more than Rs. 2.5 crores and FIR of the present case was lodged after due enquiry conducted by three members committee duly constituted under the law. 12. He further submitted that from the enquiry report, which has been annexed alongwith the instant anticipatory bail application, it reflects that after enquiry, applicant was found responsible for huge misappropriation of more than Rs. 2.5 crores. 13. He further submitted that applicant committed offence under Sections 420, 467, 468 IPC and maximum punishment for the offence under Section 467 IPC is life imprisonment. 14. He further submitted that considering the fact that huge amount of Rs.2.5 crores alleged to have been misappropriated by the applicant alongwith other accused persons, applicant should not be released on anticipatory bail. 15. He further submitted that applicant has already challenged the FIR of the present case before Division Bench of this Court in Criminal Misc. Writ Petition No. 16293 of 2023 and Writ filed by him has already been dismissed, therefore, it cannot be said that FIR of the present case lodged against the applicant is bad. Analysis 16. I have heard both the parties and perused the record of the case. 17. Writ Petition No. 16293 of 2023 and Writ filed by him has already been dismissed, therefore, it cannot be said that FIR of the present case lodged against the applicant is bad. Analysis 16. I have heard both the parties and perused the record of the case. 17. From the record, it reflects that FIR of the present case was lodged after due enquiry conducted by three members committee and after enquiry, committee found that applicant with the help of other accused persons misappropriated the public money of more than Rs. 2.5 crores by manipulating the bank account of old age pensioners. 18. Applicant is District Social Welfare Officer and allegation against him is quite serious. No doubt, personal liberty of a person is the most cherished fundamental right provided under Article 21 of Constitution of India but law is settled that while deciding the anticipatory bail application, the Court should also consider the nature of allegation, severity of punishment, status/ position of the accused and magnitude of offence alleged to have been committed by the accused. 19. The Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others (2011) 1 SCC 694 in paragraph no. 112 observed as-: "122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences; v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code,1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 20. The Apex Court in case of Pratibha Manchanda and another Vs. State of Haryana and another (2023) 8 SCC 181 , in paragraph no. 21 also observed as-: “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.” 21. It goes without saying that allegations levelled against applicant are grave in nature. 22. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.” 21. It goes without saying that allegations levelled against applicant are grave in nature. 22. Further, however, learned counsel for the applicant also contended that FIR of the present case lodged against the applicant is bad but as applicant has already challenged the FIR of the present case before this Court in Criminal Misc. Writ Petition No. 16293 of 2023 and after haring the parties, the Division Bench of this Court has already dismissed his writ petition on 02.11.2023, therefore, it can not said that FIR of the present case filed against the applicant is bad. 23. Further, as per Section 438 Cr.P.C. (as per U.P. Amendment Act), “reason to believe that accused may be arrested on accusation” is the condition precedent for releasing him on anticipatory bail. In paragraph no. 6 to the affidavit applicant expressed his apprehension of arrest as-: "That the applicant is having apprehension of his arrest in Case Crime No. 646 of 2023, under Section 420, 467, 468, 471 of I.P.C, Police Station-Sadar Bazar, District-Shahjahanpur, which does not fail under the offences provided under sub Section 438 Cr.P.C." 24. Merely on the basis of such averment, which was made by the applicant in paragraph no. 6 to the affidavit filed in support of the instant anticipatory bail application, it cannot be said that he was having reason to believe his arrest. The apprehension of arrest of accused should be based on concrete facts and it should not be imaginary. Mere fear of arrest is not the belief of arrest. 25. The Five Judges Constitution Bench in case of Shri Gurbaksh Singh Sibbia and others Vs. State of Punjab (1980) 2 SCC 565 categorically observed in paragraph no. 35 as-: "35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. The applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely." 26. Recently again Five Judges Constitution Bench of the Apex Court in case of Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98 reaffirmed the law laid down by the Constitution Bench in case of Shri Gurbaksh Singh Sibbia (supra) that belief of arrest of accused should be based on concrete facts and it cannot be accepted on the basis of vague averment. 27. In case at hand, FIR of the present case was lodged in the month of September, 2023 and since then four months have been passed and till date applicant was not arrested, therefore, in light of the vague averment made in paragraph no. 6 of the affidavit filed in support of the instant anticipatory bail application with regard to apprehension of arrest, this Court is of the view that applicant failed to bring on record any concrete fact and reason on the basis of which this Court can infer that he is having apprehension of his arrest in the instant matter. 28. 6 of the affidavit filed in support of the instant anticipatory bail application with regard to apprehension of arrest, this Court is of the view that applicant failed to bring on record any concrete fact and reason on the basis of which this Court can infer that he is having apprehension of his arrest in the instant matter. 28. Further, law is also settled that power to grant anticipatory bail is an extraordinary power, however, it is not necessary to exercise it sparingly only in exceptional cases but it should be exercised with care and circumspection. [see-: Constitution Bench of the Apex Court in case of Shri Gurbaksh Singh Sibbia (supra)]. In view of this Court this extraordinary power should not be exercised in routine manner, otherwise provisions of pre arrest bail would become vulnerable. 29. Therefore, considering the facts and circumstances of the case discussed above, in my view, the instant anticipatory bail application filed by the applicant is devoid of merit and he is not entitled to be released on anticipatory bail. 30. Accordingly, without expressing any opinion upon ultimate merits of the case either ways which may adversely affect the trial of the case, the anticipatory bail application filed by the applicant is hereby dismissed. 31. It is made clear that observations made in granting anticipatory bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.