Allowed

V.D. Agarwal v. State of U.P.

Allahabad HC5 Jul 2022ABAIL/1832/2022

Case brief

AI extract

What is this about?

In an anticipatory bail application, the High Court allowed the plea despite prior rejection by the lower court on the ground that a charge-sheet was filed. Relying on Supreme Court precedent, the court rejected the procedural bar, observing that Section 438 remains available even after a charge-sheet to cover investigation and trial stages.

What did the court decide?

Applicant shall be released on anticipatory bail upon furnishing a personal bond of Rs. 50,000/- with two sureties and complying with specified conditions.

V.D. Agarwal Vs State of U.P. — Cheating and Forgery | Allahabad HC (2022)

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1832 of 2022

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Applicant :- V.D. Agarwal Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.,Rajesh Kumar Srivastava,Virendra Kumar Srivastava

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Gaurav Kakkar, learned counsel for the applicant and the learned Additional Government Advocate for the State.

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By means of present anticipatory bail application, the applicant has shown his apprehension of arrest in Case Crime No. 931 of 2018 u/s 120B, 403, 406, 417, 418, 420, 465, 467, 468, 471, 474, 477 IPC, P.S. Phase III Noida, District Gautam Budh Nagar. He has further submitted that the present applicant has falsely been implicated in this case as he has not committed any offence as alleged in the F.I.R.

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Learned counsel for the applicant has submitted that mainly the dispute is of civil nature but so as to implicate the present applicant the impugned order has been lodged. The attention has been drawn towards the F.I.R. which was lodged on 11.7.2018 for the incident relating to the year 2006.

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Learned counsel has drawn attention of this court towards Annexure no. 13 which is an order dated 7.8.2018 passed by this Court in favour of present applicant and two others bearing Criminal Misc. Writ Petition No. 21381 of 2018 whereby the present applicant has been granted interim protection till the filing of charge-sheet. The charge-sheet has been filed on 18.12.2018.

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Learned counsel for the applicant has submitted that the present applicant is an old aged person of 72 years and has cooperated with the investigation.

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Further attention has been drawn towards Annexure no. 26 which is an order dated 11.12.2020 passed by learned court below granting anticipatory bail to the sons of present applicant namely Puneet Agarwal and Mayank Agarwal / co-accused.

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Sri Kakkar has submitted that the charge-sheet was filed on 18.12.2018 and the anticipatory bail was granted to the co-accused / sons of the applicant on 11.12.2020 but

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the anticipatory bail application of the applicant was rejected by the learned court below on 7.1.2022 on the ground that since the charge-sheet has been filed, therefore, the applicant should have taken recourse of filing regular bail application u/s 439 Cr.P.C. inasmuch as recourse of section 438 Cr.P.C. is not available after filing of the charge-sheet. As per Sri Kakkar when the anticipatory bail to the sons of the present applicant was granted on 11.12.2020, the charge-sheet had already been filed by that time, therefore, rejecting the anticipatory bail application of the present applicant who is an old aged person on the ground that charge-sheet has been filed is unwarranted.

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Sri Kakkar has also drawn attention of this Court towards some orders being passed by the prescribed authority of RERA which makes it clear that the complainant has himself not deposited the required amount and instead of depositing the required amount he is prosecuting the present applicant for the reasons best known to him. Annexure no. 27 is an order dated 17.12.2021 passed by the Member of RERA wherein such authority has observed that the informant / complainant has already got relief in the issue in question.

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So far as the ground of rejection of the anticipatory bail application of the present applicant on the ground that the charge-sheet has already been filed is concerned, Sri Kakkar has submitted that the Apex Court in re: "Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98" has made it crystal clear that there is no bar in considering the anticipatory bail application if the chargesheet has been filed inasmuch as the anticipatory bail may be considered before lodging First Information Report; after lodging of First Information Report and even after filing of the charge-sheet. That protection may be extended till conclusion of the trial. Therefore, such ground so taken by the learned court-below while rejecting the anticipatory bail application of the present applicant is not sustainable in the eyes of law.

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Sri Kakkar has also submitted that if any further investigation is pending and if any charge-sheet is filed against him he shall cooperate with the trial proceedings, therefore, considering his old age and his cooperation with the investigation as well as the fact that two coaccused persons who are sons of the present applicant have been granted anticipatory bail by the learned courtbelow itself, the liberty of present applicant may also be protected by granting him anticipatory bail.

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Per contra, learned AGA has opposed the prayer made by learned counsel for the applicant but could not dispute the submissions made by learned counsel for the applicant. Having heard learned counsel for the parties and having perused the material available on record, the present anticipatory bail application is allowed .

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Therefore, without entering into the merits of the issue, it is directed that in the event of arrest, applicant- V.D. Agarwal, shall be released on anticipatory bail in the aforesaid case crime number on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the arresting authority/ court concerned with the following conditions:-

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that the applicant shall make himself available for interrogation by a police officer as and when required;

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that the applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence;

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that the applicant shall not leave India without the previous permission of the court;

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that in default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant;

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that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;

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that the applicant shall not pressurize/ intimidate the prosecution witness;

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that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

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that in case of breach of any of the above conditions the court below shall have the liberty to cancel the bail.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 5.7.2022 Om.

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Digitally signed by OM PRAKASH MISHRA Date: 2022.07.07 18:47:46 IST Reason: Location: High Court of Judicature at Allahabad

V.D. Agarwal v. State of U.P.

Case brief

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V.D. Agarwal v. State of U.P.

Case brief

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