A single-judge criminal court rejected an anticipatory bail application filed by the applicant in a cheating case, holding that the dispute was civil in nature, there was no imminent threat of arrest, and a charge-sheet had already been filed.
Application rejected with liberty to seek remedy before appropriate forum.
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Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5645 of 2021
Applicant :- Varun Mishra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Amit Shukla Counsel for Opposite Party :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.
This anticipatory bail application has been given by applicant Varun Mishra in Case Crime No.0950 of 2020, under Sections 420, 406, 506 I.P.C., P.S. Phase-3, District Gautam Budh Nagar.
Submission of the learned counsel for applicant is that the informant and the applicant entered into business relationship and established a firm. Informant lodged an F.I.R. making allegation that he paid more than Rs.12 lacs to the applicant as the applicant has promised him to make the partner in the firm. On this promise, amount to the tune of Rs.39 lacs was taken from the informant and has misappropriated for his own benefits and has refused to pay. The applicant is also threatening the informant with dire consequences to him and to the family.
Submission of learned counsel for the applicant is that it is a kind of civil litigation between both the sides and it has been given color of criminal dispute. Certain photographs have been annexed to show that the amount taken for the purpose was doubtful and reference to the response towards legal notice has also been made indicating that this fact has been admitted by the informant himself, therefore, it has been submitted that a prima facie case for anticipatory bail is made out as the police is inclined to make arrest of the applicant.
Learned A.G.A. has opposed the prayer for bail and has submitted that after police investigation charge-sheet has already been filed and the applicant should go for regular bail before appropriate forum.
Considered the statements of both the sides, it is pertinent to mention that remedy of anticipatory bail is not a substitute of regular bail. Much stronger reason has to be shown if anticipatory bail is sought. Exceptional reasons should also be
mentioned for giving application for anticipatory bail. The F.I.R. has been lodged on 12.12.2020 and after lapse of about 7 months, there is nothing on record that the police has made any serious effort to arrest the applicant, it shows that there is no real threat of arrest of the applicant.
In view of above, I do not find sufficient reason for anticipatory bail, therefore, the application is rejected with liberty to the applicant to seek the remedy available in law before appropriate forum.
Regular bail application may be given before the appropriate forum and if such application is given, the court below shall consider and dispose of the bail application expeditiously and preferably on the same day in accordance with law.
Order Date :- 27.7.2021 Anil K. Sharma
3 issues framed by the court
Whether anticipatory bail is warranted given the absence of a showing of imminent threat of arrest and the civil nature of the dispute.
Whether the delay in arrest indicates no real threat of arrest justifying anticipatory bail.
Whether the applicant was obliged to seek regular bail before the appropriate forum given the filed charge-sheet.
1 provisions across 1 enactments
Varun Mishra
Pradeep Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
