Dismissed

Jagdish Prasad Gautam and Another v. State of U.P. and Another

Allahabad HC3 Nov 2022ABAIL/9516/2022

Case brief

AI extract

What is this about?

Single Bench of the Allahabad High Court dismissed an anticipatory bail application filed by applicants accused of forgery and mismanagement in an educational society. The Court held that since a charge-sheet was filed, anticipatory bail could not be granted and distinguished the cited case law where only interim protection was given.

What did the court decide?

Application for anticipatory bail under Section 438 Cr.P.C. hereby dismissed.

Jagdish Prasad Gautam and Another Vs State of U.P. and… — Property and Title | Allahabad HC (2022)

¶1

Court No. - 78

¶2

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9516 of 2022

¶3

Applicant :- Jagdish Prasad Gautam And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shruti Malviya Counsel for Opposite Party :- G.A.,Sanjay Singh,Vashishtha Tiwari

¶4

Hon'ble Krishan Pahal,J.

¶5

Heard Sri N.I. Jafri, learned Senior Advocate assisted by Ms. Shruti Malviya, learned counsel for the applicants, Sri Sanjay Singh and Sri Vashishtha Tiwari, learned counsels for the first informant and Sri Aditya Kumar Singh, learned A.G.A. for the State, and perused the record.

¶6

The present anticipatory bail application has been filed on behalf of the applicants in Criminal Case No. 551 of 2022, arising out of Case Crime No. 396 of 2021, under Sections 419, 420, 467, 468, 471 Indian Penal Code, Police Station Sadabad, Kotwali, District Hathras (U.P.), with a prayer to enlarge them on anticipatory bail.

¶7

PROSECUTION STORY:-

¶8

As per prosecution story, the H.P. Singh Krishi Shiksha Samiti Bisawar, Mathura was a registered society under Societies Registration Act, 1860 since 20.2.1967 and was a recognized institution in the State of U.P. being in the list of Grant-In-Aid institutions. The first informant, who happens to be the Manager of the institution, had lodged an FIR that the applicant no. 2, Ganga Prasad Gautam, who happens to be the retired principal of the institution, in collusion with his brother, applicant no. 1 Jagdish Prasad Gautam and other persons, on the basis of forged and fake elections dated 17.6.2018 and after issuing a fake document dated 7.10.2018, had illegally taken possession of management of the college, and the first informant, who was authorized on the written directions of

¶9

the District Inspector of Schools, had lodged the FIR of the said irregularities of the applicants.

¶10

RIVAL CONTENTIONS:-

¶11

Learned Senior Counsel for the applicants has argued that the applicants are absolutely innocent and have been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize them. The family members of the applicants had reared the present institution and it was their efforts that had got the institution recognized and has become a pioneer institution of the locality.

¶12

Learned Senior Advocate has submitted that the applicants have not committed any illegality or irregularity in the allegations. The elections were as per bye-laws and were conducted as a bonafide act. The applicant no. 1 was enrolled as member of the General Body of the Society by the Resolution dated 14.7.2013 and in the elections held thereon, the same year, the applicant no. 1 was elected the President while applicant no. 2 was elected the Manager of the Institution. Learned Senior Counsel has further stated that the first informant had challenged the said elections by filing Writ Petition No. 21522 of 2015 before this Court which was disposed of vide order dated 7.7.2015, wherein it was observed that Deputy Registrar has not committed any irregularity while recognizing the list for the year 2013-14. Learned Senior Counsel has further stated that till the year 2017, there was no dispute with respect to management of the institution, and it was after the elections dated 5.8.2018 that the first informant herein has set up the rival claim with the help of forged and fake documents and on the basis of those documents, he succeeded in getting his list approved by the Deputy Registrar, Firms, Societies & Chits, Agra, Uttar Pradesh. The applicants had challenged the order dated 23.6.2018 passed by Deputy Registrar Firms, Societies & Chits by means of which the claims of the applicants were rejected and the list of 52 members submitted by the first informant was approved. The said list approved vide order dated 23.6.2018 was challenged by the applicants in

¶13

2 of 7

¶14

Writ Petition No. 36618 of 2018 which is pending consideration before this Court.

¶15

Learned Senior Counsel has argued that it is a purely political rivalry amongst the parties just to take control of the management of the institution and nothing else. The present FIR has been lodged with an ulterior motive by the first informant in collusion with the District Inspector of Schools, wherein the allegations of misappropriation and mis-utilization of finance of the institution has been levelled against the applicants.

¶16

Learned Senior Counsel has further stated that there is an inordinate delay of nine months in lodging the FIR and there is no explanation of the said delay caused. He has further submitted that the investigating agency has also acted in collusion with the first informant and without going into the defence of the applicants and without undertaking a proper and fair investigation, has submitted a final report (charge sheet) on 16.10.2019 against the applicant no. 2 and the investigation was pending against the other accused persons.

¶17

Learned Senior Counsel has also stated that the said final report dated 16.10.2019 has been challenged by the applicant no. 2 in Criminal Misc. Application U/S 482 No. 2489 of 2022, wherein the applicant was granted interim protection vide order dated 25.3.2022. Learned Senior Counsel has next stated that earlier on the applicants had also challenged the institution of FIR by filing criminal misc. writ petitions and they were granted interim protection till the submission of police report. Learned Senior Counsel has further stated that malafide of the prosecution is itself apparent at the face of it as the first informant had moved an application before the Superintendent of Police to get the investigation transferred to Crime Branch and it was at his behest that the investigation by the S.P. concerned was transferred to Crime Branch, Agra without any proper and cogent reason. The investigating officer later on has submitted charge sheet on 26.6.2022 before the court below who had taken cognizance on it

¶18

3 of 7

¶19

vide order dated 18.7.2022. The applicants had approached this Court for quashing the criminal proceeding by means of Criminal Misc. Application U/S 482 No. 24427 of 2022. The aforesaid application has not yet been taken up by the Court and no order has been passed as yet.

¶20

Learned Senior Counsel has referred to Section 5 of the Code of Criminal Procedure, 1973, which is quoted hereinbelow:-

¶21

“ 5. Saving. Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.”

¶22

Learned Senior Counsel has stated that being a special Act, the provisions of Cr.P.C. do not apply to it. A complaint case ought to have been filed, if any, by the prescribed authority. The FIR is barred by Section 28 of the Societies Registration Act. Learned Senior Counsel has next stated that the criminal antecedents of the applicants have been explained in para 52 of the affidavit accompanying the bail application. The applicants are bonafide and respected persons of the locality and are entitled for anticipatory bail. There is no possibility of the applicants influencing the trial or tampering with the evidence. It is further stated that applicants are co-operating in the trial and are ready to cooperate in future also. There is no likelihood of the applicants repeating the said offence, if any. Several other submissions have been made on behalf of the applicants to demonstrate the falsity of the allegations made against them. The circumstances which, as per counsel, led to the false implication of the applicants have also been touched upon at length.

¶23

Learned Senior Counsel has placed reliance on the judgement of the Apex Court dated 9.9.2021 passed in Vinod Kumar Kanaujia and others vs. The State of Uttar Pradesh and another, Petition for Special Leave to Appeal (Crl.) No. 6791 of 2021, whereupon the petitioners in the said petition were granted interim anticipatory protection by this Court vide order dated 2.11.2021 and the said interim protection is effective to date.

¶24

4 of 7

¶25

Learned Senior counsel has also placed much reliance on paragraphs 41 sub-clause 2, 6 and 11 of the judgement of this Court in Shivam vs. State of U.P. and another reported in AirOnline 2021 All 484, which indicates that the anticipatory bail can be granted. Sub-clauses 2, 6 and 11 of paragraph 41 are being quoted hereinbelow:-

¶26

“41.(2) Where there exists a civil remedy and resort has been made to criminal remedy. This has been done because either the civil remedy has become barred by law of limitation or involves time-consuming procedural formalities or involves payment of heavy court fee, like in recovery suits.

¶27

The distinction between civil wrong and criminal wrong is quite distinct and the courts should not permit a person to be harassed by surrendering and obtaining bail when no case for taking cognizance of the alleged offences has been made out against him since wrong alleged is a civil wrong only.

¶28

When the allegations make out a civil and criminal wrong both against an accused, the remedy of anticipatory bail should be considered favourably, in case the implication in civil wrong provides for opportunity of hearing before being implicated and punished/penalized. The criminal remedy, in most of the cases, entails curtailment of right to liberty without any opportunity of hearing after lodging of complaint and F.I.R under the provisions of Cr.P.C. which is pre-independence law and disregards Article 14 and 21 of the Constitution of India. Therefore, in such cases where civil and criminal remedy both were available to the informant/complainant, and he has chosen criminal remedy only, anticipatory bail should be favourably considered in such cases.

¶29

(6) Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible;

¶30

(11) Where there is statutory bar regarding filing of F.I.R. and only complaint can be filed, charge-sheet submitted against an accused in such cases would entitle him to apply for anticipatory bail after submission of charge-sheet by the Investigating Officer.”

¶31

Learned Senior Counsel has stated that the civil proceedings have been converted into criminal one and the present case is squarely covered by the aforesaid case laws. Learned Senior Counsel has also placed reliance on the judgement of the Apex Court wherein it has been stated that the cases where criminal texture has been added to the civil litigation, that too, after a delay of four years, the applicants are entitled for anticipatory protection. The following judgements have been referred to by the learned Senior Counsel:-

¶32

5 of 7

¶33

i) Crl. Appeal No. 1500/2010 (Kishan Singh (D) through L.Rs Vs. Gurpal Singh & Ors) Relying upon (paragraphs 3, 8, 11, 12, 13, 21, 22)

¶34

ii) Crl. Appeal No. 932/2021 (Randheer Singh vs. State of U.P.) Relying upon (paragraphs 17, 26, 27, 28, 29, 30, 32, 33)

¶35

iii) Crl. Appeal No. 295/2022 (Syed Yaseer Ibrahimm vs. State of U.P.) Relying upon (Paragraphs 8,9,10)

¶36

iv) Crl. Appeal No. 1285/2021 (Mitesh Kumar J. Sha vs. State of Karnataka & Ors.) Relying upon (paragraphs 26, 27, 28, 34, 35, 36, 37, 38, 41 to 47)

¶37

Per contra, learned A.G.A. and learned counsel for the first informant have vehemently opposed the anticipatory bail application and have disputed the averments tendered by the learned Senior Counsel for the applicants by stating that the applicants have long criminal antecedents. Learned counsel for the first informant has stated that the FIR was lodged in the year 2021. The applicants are powerful persons of the locality and are avoiding the process of Court since more than a year. They have exhausted all the remedies provided under the Code and they have even failed to get any relief in the petition filed under Section 482 Cr.P.C. by challenging the final report duly filed by the investigating officer after thorough investigation. The case is squarely covered by paragraph 43 (1) of Shivam vs. State of U.P. and another (supra), wherein the charge sheet has been filed and the only argument tendered is that the statements of the witness are not truthful. The applicants are not entitled for anticipatory bail. Paragraph 43 (1) of the judgement has been reproduced hereinbelow:-

¶38

“43) However, in the following cases, anticipatory bail cannot be granted to an accused after submission of charge-sheet:-

¶39

Where the Investigating Officer has submitted charge-sheet but it is argued that the statements of the witnesses recorded are not truthful. Truthfulness or otherwise of the statements of the witnesses recorded by investigating officer in support of complaint case are to be tested during

¶40

6 of 7

¶41

trial and not at the stage of consideration of anticipatory bail application;”

¶42

CONCLUSION:-

¶43

The judgements referred by learned Senior Counsel for the applicants do not apply to the present case, as the Apex Court has not directed the courts below to grant anticipatory bail. It has simply granted interim protection for a period of four weeks only and even this Court has not granted the anticipatory bail to the applicants therein. Rather only interim protection has been given to them. It is also settled law that if there is some financial irregularity or fraud committed in an institution, the criminal proceedings shall lie and the bar provided under Section 28 shall not apply.

¶44

The submissions raised by learned Senior Counsel for the applicants cannot be agitated at this stage as the same pertains to regular bail. The case is not fit for the interim protection or anticipatory bail.

¶45

In view of the above, present anticipatory bail application is dismissed .

¶46

Order Date :- 3.11.2022 Shalini

¶47

7 of 7

¶48

Digitally signed by SHALINI JAISWAL Date: 2022.11.10 16:33:28 IST Reason: Location: High Court of Judicature at Allahabad

Jagdish Prasad Gautam and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Jagdish Prasad Gautam and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Guddu @ Naushad and 2 Others Vs State of U.P.

Smt. Jai Shri Vs State of U.P. and Another

Rampal Singh Vs State of U.P.

Farman Vs State of U.P. and Another

Virendra Singh and 3 Others Vs State of U.P. and 2 Others

Mobeen Vs State of U.P. and Another