Allowed

Rishal Kumar Gupta v. State of U.P.

Allahabad HC25 Sept 2023ABAIL/10191/2023

Case brief

AI extract

What is this about?

The High Court allowed an anticipatory bail application filed directly without Sessions Court rejection due to the applicant's residency constraints. The court granted bail pending the police report, citing cooperation and lack of absconding risk.

What did the court decide?

Anticipatory bail granted pending filing of police report under Section 173(2) Cr.P.C. on furnishing a personal bond of Rs.50,000/- with two sureties.

Rishal Kumar Gupta Vs State of U.P. — Anticipatory Bail | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:186552

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10191 of 2023

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Applicant :- Rishal Kumar Gupta Opposite Party :- State of U.P. Counsel for Applicant :- Prateek Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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This application has been moved on behalf of the applicant - Rishal Kumar Gupta seeking anticipatory bail in Case Crime No. 82 of 2023, under Sections 379, 411, 420, 467, 468, 471, 120B IPC, Police Station- Pipari, District- Sonbhadra.

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At the very outset, a preliminary objection has been raised by the learned A.G.A. that the present application for grant of anticipatory bail has been moved on behalf of the applicant directly before this Court without any rejection order from the concerned Sessions Court, hence the same is not maintainable.

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To meet out this argument, learned counsel for the applicant has submitted that the applicant is the resident of District Chandauli and in the present situation, when the local police wants to arrest him, it was not possible for him to go and stay in District Sonbhadra and to file anticipatory bail application before the Sessions Court, Sonbhadra. Reliance in this regard has been placed on the decision of Full Bench consisting five Judges of this Court in the case of Ankit Bharti vs. State of U.P. and another, 2020 (3) ADJ 165 (F.B.) wherein the Full Bench has discussed on the issue of concurrent jurisdiction for approaching at the first instant for anticipatory bail before High Court or Session Court and held that there must be compelling or special circumstances entitling a party to directly approach the High Court for grant of anticipatory bail.

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The reason disclosed in paragraph 2 of the affidavit filed in support of the anticipatory bail application and as stated by the learned counsel for the applicant, in the opinion of the Court,

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comes within the category of a special reason / circumstance under which the applicant may be permitted to move anticipatory bail application directly to this High Court without having any rejection order from the Court of Sessions. The application is well maintainable before this Court.

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It is alleged that the Government supply coal was being transported by the trucks through some forged papers and forged transit pass and the destination was also changed. The accused applicant played an active role in commission of the crime. FIR was lodged on 22.6.2023 and investigation started, which is going on.

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It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Investigation is going on in the matter. It is further submitted that no forged papers or transit pass were provided by the present applicant to the other co-accused persons. It is further submitted that as a matter of fact the coal which was to be transported at Jhabua Power Ltd. was delivered to the same destination and it was never sent to Chandauli as alleged in the FIR. It is further submitted that the said coal was to be transported by train also after completing some distance and a railway receipt is also being annexed as annexure no.6 of the affidavit wherein the truck in question is mentioned at serial number 99. It is further submitted that the applicant is the owner of the Truck No.UP 67 AT 1973 and he has absolutely committed no fraud. Coal has been safely handed over to the Railway Department, from where it was delivered to its proper destination. It is further submitted that the co-accused Prabhash Kumar Singh alias Prabhat has been granted anticipatory bail by this Court till submission of police report under section 173 (2) Cr.P.C. vide order dated 15.9.2023 passed in Crl. Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.10100 of 2023. It is further submitted that the applicant is having no criminal history to his credit and he is cooperating with the investigation of the case and is entitled for anticipatory bail. In case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.

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Learned A.G.A. opposed the prayer for anticipatory bail.

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In the present case the applicant is cooperating with the investigation of the case. Prima facie, it appears that the coal reached its destination properly.

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In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

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In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

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Considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till filing of police report under Section 173(2) Cr.P.C. before the competent Court.

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The anticipatory bail application is accordingly allowed .

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In the event of arrest of the applicant, he shall be released on anticipatory bail till filing of police report under Section 173(2) Cr.P.C. before the competent Court on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

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(i) The applicant shall make himself available for interrogation by a police officer as and when required.

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(ii) 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/her from disclosing such facts to the Court or to any police office.

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(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

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In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant.

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Order Date :- 25.9.2023 ss

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Digitally signed by :- SANDEEP SHARMA High Court of Judicature at Allahabad

Rishal Kumar Gupta v. State of U.P.

Case brief

What is this about?

What did the court decide?

Rishal Kumar Gupta v. State of U.P.

Case brief

What is this about?

What did the court decide?

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