The court converted an interim anticipatory bail order into an absolute grant after finding no new facts and no counter affidavit filed by the State within the stipulated period.
The interim order dated 07.04.2023 granting interim anticipatory bail is made absolute.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC-LKO:63356
Court No. - 16
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 801 of 2023
Applicant :- Prabhat Kumar
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Dharm Trivedi
Counsel for Opposite Party :- G.A.,Rakesh Kumar Chaudhary,Rinku Kumar Verma
Hon'ble Subhash Vidyarthi,J.
"Heard Shri Dharm Trivedi, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
The present anticipatory bail application has been moved by the accused/applicant- Prabhat Kumar in Case Crime No.0214 of 2019, under Sections 409, 419, 420, 467, 468, 471, 477A I.P.C, Police Station Kotwali Sadar, District Lakhimpur Kheri, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.
Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.
While drawing attention of this Court towards the F.I.R. and the statement of prosecution witnesses recording during the course of investigation, it is submitted that the allegations against the applicant and other accused persons, who are named in the F.I.R. are to the tune that in the District Cooperative Bank Limited, Badagaon Branch, Lakhimpur Kheri demand draft and bank cheques have been paid to the tune Rs.26,28,847.35/- and this money has been misappropriated. It is also the case of the prosecution that offence has been committed by the applicant in connivance with other accused persons.
It is vehemently submitted on behalf of the applicant that the applicant at the relevant point of time was posted as Cashier in the Branch and his duty was not to verify the payments and after the payment is approved by the Branch Manager his duty was only to disburse the amount and no option in this regard with regard to verify the authenticity of the pay bill was available to the applicant.
It is also submitted that during the course of investigation, liberty of the applicant was protected under the orders of this Court passed in a writ petition filed by the applicant and as the applicant has cooperated in the investigation, charge sheet has been filed without making arrest of him. It is also submitted that admittedly the amount in question has been received by the beneficiaries in their bank accounts and the same is shown to have been returned to the applicant and other accused persons by the beneficiaries, however, this allegations by any stretch of imagination could not be believed as being highly improbable.
It is further submitted that in the departmental inquiry held against the applicant and other accused persons, the liability to the tune of Rs.8,81,523.60/- was fixed on the applicant and this money has been withheld out of E.P.F. account of the applicant, thus the money, which is
shown to have been misappropriated, has been withheld from the E.P.F. account of the applicant and the applicant has been reinstated in service.
It is further submitted that identically placed accused persons namely Ashok Kumar Gautam, the then Branch Manager and Ramkant Maurya, the then cashier have been granted protection from arrest by a Coordinate Bench of this Court vide order dated 30.01.2023 and 18.01.2023 passed in Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No.208 of 2023 and 114 of 2023, respectively. The applicant is a law abiding citizen and there is no apprehension that after being granted facility of anticipatory bail, he may flee from the course of law or otherwise misuse the liberty.
Learned A.G.A on the other hand submits that the applicant has committed heinous offence in connivance with other accused persons, therefore, the applicant is not entitled to be released on anticipatory bail, but could not dispute that identically placed co-accused persons have been granted interim protection.
Having heard learned counsel for the parties and having perused the record, it is evident that charge sheet has been filed by the investigating officer without making arrest of the applicant. Identically placed accused persons namely Ashok Kumar Gautam, the then Branch Manager and Ramkant Maurya, the then Cashier have been granted facility of interim anticipatory bail, thus in the considered opinion of this Court, on the principle of parity similar benefit may also be granted to the applicant.
Issue notice to the opposite party no.2 returnable within three weeks.
Steps in this regard be taken by learned counsel for the applicant within three working days from today.
List this case on 25.04.2023.
It is provided that till the next date of listing in the event of arrest of the applicant- Prabhat Kumar involved in the above noted case or on his surrender before the trial court within 15 days from today i.e. before 24.04.2023, whichever is earlier, he shall be released forthwith on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the trial court, Station House Officer of the Police Station concerned/ Investigating Officer subject to the following conditions:
1. The applicants if not arrested earlier, shall surrender before the trial court within 15 days from today i.e. on or before 24.04.2023 and will cooperate in the trial.
2. The applicants shall Cooperate in the investigation and will make themselves available as and when required by the Investigating officer of the case, even for the recovery of any fact.
3. The applicants shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during their release on anticipatory bail.
4. The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence and specially when the prosecution witnesses are present in court.
5. The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.
(6) The applicants will not leave the territory of India.
If in the opinion of the trial court default of any of the condition placed above is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of their bail and shall proceed against them in accordance with law.
In the meantime, counter affidavit may be filed by learned A.G.A."
(Subhash Vidyarthi,J.)
Order Date :- 3.10.2023 Preeti.
Digitally signed by :- PREETI GAUTAM High Court of Judicature at Allahabad, Lucknow Bench
3 issues framed by the court
Whether the interim anticipatory bail granted earlier should be confirmed as absolute bail after the period for filing a counter affidavit expired without any new facts coming to light.
Whether the delay in deciding the anticipated bail application justifies dismissing the application.
Whether the principle of parity applies when co-accused persons have been granted interim anticipatory bail in identically placed cases.
3 provisions across 2 enactments
Prabhat Kumar
State Of U.P.
Subhash Vidyarthi
Preeti Gautam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
