Dismissed¶19

Devandra Sharma v. State of U.P. and 2 Others

Allahabad HC22 May 2023ABAIL/4369/2023

Case brief

AI extract

What is this about?

Second anticipatory bail application u/s 438 Cr.P.C. and review of rejection order dated 31.01.2023 — both rejected; misuse of liberty by non-appearance; no rejoinder affidavit to counter affidavit filed 26.09.2022; allegations of stolen trucks, changed chassis number/number plate and forged RC (Case Crime No. 130 of 2021, P.S.-Nai Mandi, District-Muzaffar Nagar); Sadhana Chaudhary v. State of Rajasthan parameters relied on; liberty granted by Supreme Court in SLP (Crl.) No. 3285 of 2023; Allahabad High Court, Manju Rani Chauhan J, 22.05.2023; Neutral Citation 2023:AHC:112984.

What did the court decide?

The review of the order dated 31.01.2023 is rejected; considering the parameters summarised in Sadhana Chaudhary v. State of Rajasthan and the facts and circumstances, no case for review was made out. ¶18

Devandra Sharma Vs State of U.P. and 2 Others — Cheating and Forgery | Allahabad HC (2023)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the order dated 31.01.2023 rejecting the anticipatory bail application deserves to be reviewed, in view of the averments regarding apprehension of arrest made in Paragraph 6 of the anticipatory bail application, as noted by the Hon'ble Apex Court while granting liberty. +1 more

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Court's answer

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Ratio / Principle

Learned counsel for the applicant misunderstood the impugned order: the observation that nothing was on record regarding apprehension of arrest meant that no rejoinder affidavit had been filed detailing that the conditions of the order dated 02.11.2021 had not been violated, so the applicant was enjoying the interim protection without replying to the counter affidavit.

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Key takeaways

Non-appearance of the applicant before the Court without sufficient cause could not be excused and amounted to misuse of the liberty granted by the earlier interim anticipatory bail order.ratio¶11
The second anticipatory bail application stands rejected.ratio¶19

Detailed headnote1 paragraphs

Allahabad High Court (Manju Rani Chauhan, J.; order dated 22.05.2023; Neutral Citation 2023:AHC:112984) — Second anticipatory bail application under S. 438 Cr.P.C. (Case Crime No. 130 of 2021, under Sections 420, 419, 467, 468, 471, 412, 120B, 34 IPC, P.S.-Nai Mandi, District-Muzaffar Nagar) along with review of the co-ordinate Bench order dated 31.01.2023 — Both rejected. Acting on the liberty granted by the Supreme Court in SLP (Crl.) No. 3285 of 2023 (dismissed as not pressed, 17.03.2023) to point out a factual error, the applicant argued that Paragraph 6 of Anticipatory Bail Application No. 16800 of 2021 contained specific averments of apprehension of arrest which were not considered. The Court held that counsel had misunderstood the impugned order: its observation about absent averments concerned the failure to file any rejoinder affidavit showing compliance with the conditions of the interim-bail order dated 02.11.2021; non-appearance even in the revised call on 31.01.2023, despite repeated opportunities, amounted to misuse of liberty. Considering the role assigned to the applicant, the gravity and nature of the accusations (truck with changed chassis number/number plate and forged RC; alleged organised use of stolen trucks) and the parameters summarised in Sadhana Chaudhary v. State of Rajasthan (recounting Gurbaksh Singh Sibbia, Siddharam Mhetre and Sushila Aggarwal), the review as well as the second anticipatory bail application were rejected.

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Neutral Citation No. - 2023:AHC:112984

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Court No. - 68

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4369 of 2023 Applicant :- Devandra Sharma Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Satyendra Narayan Singh,Vikas Singh

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Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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1. This is the second Anticipatory bail on behalf of applicant.

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2. Heard Mr. Satyendra Narayan Singh, learned counsel for the applicant and Mr. Amit Singh Chauhan, learned A.G.A. for the State.

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3. Learned counsel for the applicant submits that earlier on 20.05.2021, the co-ordinate Bench of this Court granted anticipatory bail to the applicant in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 9445 of 2021 till submission of charge sheet and after submission of charge sheet on 15.06.2021, interim anticipatory bail was granted by coordinate Bench of this Court on 2.11.2021 in Application u/s 438 Cr.P.C. No. 16800 of 2021. On 31.01.2023 without perusing paragraph 6 of the aforesaid application wherein the fact about apprehension was stated the anticipatory bail was rejected. Paragraph 6 of the aforesaid is quoted hereinbelow:-

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“ That in the above noted case the informant is police personal and the police of police station Nai Mandi is unnecessary harassing to the applicant and knocking the door daily and there is possibility to arrest the applicant by police of police station Nai Mandi and if the applicant will be arrested then the image of the applicant will be malign in the society.”

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4. On 31.01.2023, the following order was passed:

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"List revised. No one has appeared on behalf of the applicant to press this application. Learned AGA for the State is present.

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The present application has been moved seeking anticipatory bail in Case Crime No. 130 of 2021, under Sections 420, 419, 467, 468, 471, 412, 120B, 34 IPC, P.S.-Nai Mandi, District-Muzaffar Nagar, with the prayer that in the event of arrest, applicant may be released on bail.

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Perusal of the record goes to show that vide order dated 2.11.2021, interim anticipatory bail was granted to the applicant with the condition mentioned in the order. There is nothing on record to show that the condition, stipulated in the order dated 2.11.2021 has been complied with or not.

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The Court finds that the applicant is enjoying the interim anticipatory bail as granted by the order dated 2.11.2021 passed by the Coordinate Bench of this Court. Non-appearance of the applicant in Court without "sufficient cause" cannot be excused and the same amounts to misuse of liberty as granted by the earlier order.

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The resources of the Court which includes precious judicial time are scarce and already badly stretched. Valuable Court time, which is required to be engaged in adjudication of serious judicial action, is expended on frivolous and vexatious litigation which is misconceived and is an abuse of the process of law. A judicial system has barely sufficient resources to afford justice without unreasonable delay to those having genuine grievances. Therefore, increasingly, the Courts have held that such totally unjustified use of judicial time has to be curbed and the party so wasting precious judicial resources, must be required to compensate not only the adversary but also the judicial system.

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In order to make disposal of this application, it is relevant to mention Section 438 Cr.P.C., which is reproduced herein below:-

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"438. Direction for grant of bail to person apprehending arrest.

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(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

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(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

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(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

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(ii) a condition that the person 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;

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(iii) a condition that the person shall not leave India without the previous permission of the Court;

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(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

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(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate

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taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under subsection (1)."

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From the record, it appears that there is no apprehension of arrest of the applicant nor anything has been averred in the affidavit with regard to threat or apprehension of arrest of the applicant.

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In the light of above, looking to the facts and circumstances of this case, 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.

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Accordingly this application under section 438 Cr.P.C. is rejected. Interim order, if any, stands discharged.

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It is open to the Court/authority concerned to proceed in accordance with law.

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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.

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Registrar (Compliance) is directed to communicate this order to the concerned Court/authority for necessary information and compliance."

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5. Challenging the aforesaid order, Petition(s) for Special Leave to Appeal (Crl.) No.3285 of 2023 was filed before the Hon'ble Apex Court, in which, the following order has been passed:

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“ The High Court under the impugned order dismissed the pre-arrest bail application of the petitioner by recording that no apprehension of arrest of the applicant has been averred in the affidavit.

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Adverting to the pleadings in Paragraph 6 of the Criminal Miscellaneous Anticipatory Bail Application No.16800 of 2021, the learned counsel submits that specific averments were made in the said application. Accordingly, he prays for liberty to withdraw the present Special Leave Petition in order to move the High Court in its review jurisdiction pointing out the factual error noted in the impugned order.

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In view of the above submission of the petitioner’s counsel, the Special Leave Petition stands dismissed as not pressed reserving the liberty as aforesaid.

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Pending application(s), if any, shall stand closed.”

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6. Learned counsel for the applicant submits that in view of the averments made in Para 6 of the Criminal Misc. Anticipatory Bail Application No. 16800 of 2021, wherein specific averments regarding apprehension of arrest were made, was not

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considered, therefore, the Hon'ble Apex Court granted liberty to withdraw the Special Leave Petition and to move a review application before the High Court pointing out the aforesaid factual error as noted in the order dated 31.01.2023.

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7. Learned counsel for the applicant submits that in the order dated 31.01.2023, after perusal of the records, it has been stated that there was no apprehension of arrest of the applicant and nothing was averred with regard to threat or apprehension of arrest of the applicant, which is incorrect in view of the Paragraph 6 of the anticipatory bail application so filed, therefore, the order dated 31.01.2023 may be reviewed, keeping in mind the averments as made in Paragraph 6 of the anticipatory bail application so filed.

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8. Although there is no provision of filing review application in anticipatory bail application but in view of the order dated 17.03.2023 passed by the Hon’ble Apex Court in Special Leave to Appeal No. 3285 of 2023, the counsel for the applicant requests that the present application may be entertained to look into the averment mentioned in paragraph 6 regarding apprehension of arrest for which liberty has been granted by Hon’ble Apex Court and the present application may also be heard on merits.

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9. Arguing on the merit of the case, the counsel for the applicant submits that applicant has only purchased the truck from Rajasthan and the same was being used at Muzaffarnagar after getting registration number of the vehicle changed by the concerned authorities, therefore, the applicant has neither manipulated any document nor has changed the chasis number and number plate of the vehicle as alleged in the first information report and the trucks were purchased by the applicant after completion of all the formalities as required.

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Hence no offence under relevant sections is made out against the applicant. Thus the order dated 31.01.2023 rejecting the Anticipatory bail Application No. 16800 of 2021 without considering the apprehension of arrest as stated in paragraph 6 of the aforesaid application, is not justified.

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10. Learned A.G.A. on the other hand submits that there is no provision of reviewing the order passed in anticipatory bail application, even otherwise the records were considered, though in paragraph 6 it was mentioned that there was apprehension of arrest, considering which, interim order was granted on 02.11.2021. When the matter was taken up on 31.01.2023, none appeared on behalf of the applicant to press the application. One of the conditions mentioned while granting interim bail vide order dated 02.11.2021 was that the applicant shall not misuse the liberty as granted to him. The non appearance of the counsel goes to prove that the applicant was enjoying the interim order and was not represented on the said date, therefore, it can be interpreted as misuse of liberty to evade appearance before the High Court on the date fixed in the matter, in order to enjoy the interim order as already granted. He further submits that no new ground has been placed, on which the present anticipatory bail may be entertained. Learned AGA also submits that from the material collected by the Investigating Officer, the stolen trucks after changing the registration number were being used for transportation, therefore, an organized crime was committed by the applicant with the help and assistance of others which is a serious offence against the society.

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11. When the matter was heard on 31.01.2023 the counsel for the applicant did not appear even in the revised call. Counter affidavit was already filed but no rejoinder affidavit was filed till that date. The Court while rejecting the anticipatory bail

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application on behalf of applicant by order dated 31.01.2023 has clearly mentioned that the applicant was enjoying anticipatory bail and after the order dated 02.11.2021, there was nothing on record to show that he has not violated the conditions, stipulated in the order dated 02.11.2021 as no rejoinder affidavit was filed till that date and by the last order dated 04.01.2023 passed by this Court, it was clearly stated that the interim protection was not be deemed to have been extended without an unambiguous extension order of this Court. After the order dated 02.11.2021, there was nothing on record to show that the applicants are not avoiding facing the trial and were enjoying the interim anticipatory bail granted to him, it was also mentioned that non-appearance of the applicant before the Court without “sufficient cause” could not be excused and the same amounted to misuse of liberty as granted by the earlier order.

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12. The relevant para of the order dated 31.01.2023 which has been misunderstood and misinterpreted by the counsel for the applicant has been quoted hereinbelow:-

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“ From the record, it appears that there is no apprehension of arrest of the applicant nor anything has been averred in the affidavit with regard to threat or apprehension of arrest of the applicant. ”

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13. Learned counsel for the applicant has misunderstood the aforesaid para as only the records of the anticipatory bail application pursuant to which order dated 02.11.2021 was passed. The records in the aforesaid paragraph meant as follows:-

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"Rejoinder affidavit was to be filed detailing therein that the conditions as mentioned in the order dated 02.11.2021 have not been violated. Thus after the order dated 02.11.2021, there was nothing on record to show that the applicant was avoiding facing trial and was enjoying the stay order without reply to the counter affidavit, so filed."

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14. Several dates were fixed in the matter after 02.11.2021, i.e.

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30.08.2022, 26.09.2022, 21.10.2022, 18.11.2022, 30.11.2022

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but no rejoinder affidavit was filed to the counter affidavit, therefore, on 04.01.2023, the following order was passed:-

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“ Sri Vikas Singh, Advocate holding brief for Sri Satyendra Narayan Singh, learned counsel for the applicant and learned A.G.A. for the State are present.

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On the request of counsel for the applicant, the hearing is adjourned for today.

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List on 17.01.2023 in the additional cause list.

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Meanwhile, rejoinder affidavit, if any, may be filed.

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Interim order, if any, shall continue till the next date fixed.

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It is made clear that the interim protection shall not be deemed to have been extended without an unambiguous extension order of this Court.”

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15. After which order dated 31.01.2023 has been passed in the revised call wherein counsel for the applicant did not appear.

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16. Hearing the matter on merits, a detailed counter affidavit has been filed wherein it has been mentioned that the aforesaid persons after changing the Chasis number and number plate of the vehicle have prepared forged RC and the said truck moving from Meerut to Muzaffarnagar, transport was intercepted by the police personnel, arresting few persons from the spot wherein applicant ran and the stolen truck was recovered. Looking into the provisions of Section 438 (A) Cr.P.C., though the counter affidavit has been filed on 26.09.2022, but despite time granted no rejoinder affidavit has been filed and the applicant was enjoying the interim anticipatory bail granted to him.

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17. In the judgment of Hon'ble Apex Court in Case of Sadhana Chaudhary Vs. State of Rajasthan passed in Criminal Appeal No. 936 of 2022 (Arising out of S.L.P. (Crl.) No. 8477 of 2021) , the Apex Court has held as under:-

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"14. Law on the applicability or grant of anticipatory bail under section 438 Cr.P.C. may be briefly summarised as under:

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14.1. In Shri Gurbaksh Singh Sibbia and Others v. State of Punjab , a Constitution Bench of this Court, Chief Justice Y.V. Chandrachud , speaking for the Court dealt with in detail on the considerations for grant of anticipatory bail.

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14.2. In Siddharam Satlingappa Mhetre vs. State of Maharashtra and

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Others ; this Court relying upon the Constitution Bench judgment in Shri Gurbaksh Singh Sibbia laid down in paragraph 112 of the report the following factors and parameters to be considered while dealing with an application for anticipatory bail:

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"(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

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(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

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(iii) The possibility of the applicant to flee from justice;

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(iv) The possibility of the accused's likelihood to repeat similar or other offences;

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(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

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(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

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(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

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(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

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(ix) The court to consider reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant;

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(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

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14.3. In yet another recent Constitution Bench judgment in the case of Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another , in paragraph 85 of the report Justice Ravindra Bhatt laid down the guiding principles in dealing with applications under Section 438."

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18. In view of the aforesaid observations, the review of the order dated 31.01.2023 is rejected.

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19. The second anticipatory bail application also stands rejected accordingly.

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Order Date :- 22.5.2023 Arti

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

Devandra Sharma v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Devandra Sharma v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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