The court rejected an application for anticipatory bail under Section 438 Cr.P.C. filed by Vishal Mishra accused of cheating under various IPC sections. The court found no case to exercise its discretionary power to grant bail.
The application for anticipatory bail under Section 438 Cr.P.C. is rejected.
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Court No. - 77 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12265 of 2022 Applicant :- Vishal Mishra @ Vishal Mishra Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Anil Kumar,Mohit Singh Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Anil Kumar, learned counsel for the applicant, Sri Amit Singh Chauhan, learned Additional Government Advocate for the State of U.P. and perused the record.
The present application has been moved seeking anticipatory bail in Case Crime no. 108 of 2022, under Sections 419, 420, 467, 468, 471 I.P.C., Police Station Cantt., District Gorakhpur with the prayer that in the event of arrest, applicant may be released on bail.
As per the prosecution case, an FIR has been lodged on 15.02.2022 with the allegations that the applicant alongwith coaccused and some unknown persons have extracted a sum of Rs. 30,000/- each from 31 persons (total amount Rs. 9,60,000/-) on the assurance that they will be sent abroad and thus they have been cheated.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. The applicant is working in a company situated at Ajman in UAE. The applicant is employed as light technician in the said company and has not taken any money, promising to send any person abroad. The applicant was out of India at the time of alleged transaction, if any. He has not participated in getting Visa and passport for sending persons abroad. It is the coaccused who collected the details of the applicant from his residence and used to assure the persons to whom he provided Visa and Passport to provide job in UAE. The applicant is not beneficiary of the alleged incident nor any amount has been credited in the account of the applicant. The criminal history of the applicant has properly been explained in para 17 to the affidavit filed in support of application. Lastly, it is submitted that in case, applicant is granted anticipatory bail, he would not misuse the liberty and will co-operate with the investigation of this case. The applicant undertakes to co-operate during investigation and trial and he would appear as and when required by the investigating agency or Court. It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate with the
investigation and would obey all conditions of bail.
Learned Additional Government Advocate for the State opposed the prayer for granting anticipatory bail to the applicant by contending that the charge sheet has been submitted against the applicant wherein material has been recorded regarding fraud played by the applicant. Allegation against the applicant is serious in nature, hence he is not entitled to release on anticipatory bail. Considering the prosecution case, offence is made out against the applicant.
Object of section 438 of the Code of Criminal Procedure, is that a person should not be unnecessarily harassed or humiliated in order to satisfy personal vendetta or grudge of complainant or any other person operating the things directly or from behind the curtains. It is well settled that discretionary power conferred by the legislature on this court can-not be put in a straitjacket formula, but such discretionary power either grant or refusal of anticipatory bail has to be exercised carefully in appropriate cases with circumspection on the basis of the available material after evaluating the facts of the particular case and considering other relevant factors (nature and gravity of accusation, role attributed to accused, conduct of accused, criminal antecedents, possibility of the applicant to flee from Justice , apprehension of tampering of the witnesses or threat to the complainant, impact of grant of anticipatory bail in investigation, trial or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.
In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties, taking into consideration the role assigned to the applicant as per prosecution case, gravity and nature of accusation as well as reasons mentioned above, this court is of the view that no case for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of applicant.
Accordingly this application under section 438 Cr.P.C. is rejected .
It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case. The investigating officer of this case shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials / evidences on record.
Order Date :- 5.1.2023/Arti
Digitally signed by :- ARTI SHARMA High Court of Judicature at Allahabad
2 issues framed by the court
Whether anticipatory bail under Section 438 Cr.P.C. should be granted to an applicant accused of cheating.
Whether the gravity of the accusation and role attributed to the applicant justify refusal of anticipatory bail.
2 provisions across 2 enactments
Vishal Mishra
State Of U.P.
Manju Rani Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
