Allowed

Bhola Mistri @ Kalyan Singh v. State of U.P. . and Another

Allahabad HC30 Nov 2023ABAIL/13186/2023

Case brief

AI extract

What is this about?

The High Court allowed an application for anticipatory bail to Bhola Mistri in a charge-sheeted case involving cheating and forgery. Non-custodial interrogation was deemed unnecessary due to cooperation, and bail was granted to continue until the conclusion of trial.

What did the court decide?

Application allowed; applicant to be released on bail on personal bond of Rs. 50,000 with two sureties complying with standard conditions regarding tampering, intimidation, and leaving the country.

Bhola Mistri @ Kalyan Singh Vs State… — Constitutional and Fundamental Rights | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:226533

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13186 of 2023

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Applicant :- Bhola Mistri @ Kalyan Singh Opposite Party :- State Of U.P. . And Another Counsel for Applicant :- Sandhya Singh,Kapil Kumar 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 AGA and perused the material available on record.

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This application for anticipatory bail has been filed by applicant- Bhola Mistri @ Kalyan Singh in connection with Case Crime No. 92 of 2019 under sections 419, 420, 467, 468, 471 IPC, P.S. Pisawa, District- Aligarh.

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Two property dealers namely Rahul and Vikas made a telephonic call to the informant and inquired regarding sale of landed property of his sister and they also disclosed that they have made a chat in this regard with named accused persons Vinod Kumar and Bhola Mistry. Forged adhar card and pan card were also sent by the said Rahul and Vikas on mobile of the informant through whatsapp. FIR was lodged and investigation started. Now the charge sheet has been submitted.

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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. Charge sheet in the matter has been submitted. It is further submitted that as a matter of fact no deal regarding sale of any property has taken place between the informant and the present applicant. It is further submitted that there is no sale transaction at all between the parties and no money has been given as token amount to the informant or any other person. It is further submitted that no wrongful gain has absolutely been made by the present applicant in his favour and the informant has also not suffered any wrongful loss. It is further submitted that during investigation Cr. Misc. Anticipatory Bail Application No. 1684 of 2020 was preferred by the present applicant wherein he was granted

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anticipatory bail till submission of police report under Section 173(2) Cr.P.C. by this Court vide order dated 13.2.2020 and the said liberty has not been misused. It is further submitted that the applicant is having no criminal history to his credit and he has been cooperative during investigation. In case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

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Learned A.G.A. has opposed the prayer for anticipatory bail but however he could not dispute this factual aspect that no money transaction has taken place in the matter and the applicant has been cooperative during investigation.

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In the present matter the applicant has no criminal history. After submission of charge sheet no custodial interrogation is required. It also reveals from the perusal of the record that no process under Section 82/83 Cr.P.C. has been issued against the applicant till date and he has cooperated during the investigation.

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Although the charge sheet has been submitted in this matter but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

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It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

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It has been further held by the Hon'ble Apex Court 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 Aman Preet Singh v. CBI, (2022) 13 SCC 764 , the Hon'ble Apex Court has held that :

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"11. A reading of the aforesaid shows that it is the guiding principle for a

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Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87 Cr.P.C that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

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In sofar as the present case is concerned and the general principles under Section 170Cr.P.C, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

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Hence, 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 conclusion of trial in the matter.

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The anticipatory bail application is allowed accordingly.

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In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :-

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i. 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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ii. The applicant shall not pressurize/ intimidate the

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prosecution witness.

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iii.The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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iv.The applicant shall not leave India without prior permission of the Court and if he has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.

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In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law.

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Order Date :- 30.11.2023 Fhd

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Digitally signed by :- FAHAD NIYAZ High Court of Judicature at Allahabad

Bhola Mistri @ Kalyan Singh v. State of U.P. . and Another

Case brief

What is this about?

What did the court decide?

Bhola Mistri @ Kalyan Singh v. State of U.P. . and Another

Case brief

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What did the court decide?

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