Dismissed

Dushyant Sharma v. State of U.P.

Allahabad HC21 Feb 2023ABAIL/9733/2022

Case brief

AI extract

What is this about?

High Court held that the applicant failed to demonstrate special circumstances justifying a direct approach for anticipatory bail, dismissing the application as the remedy of approaching the Sessions Court had not been exhausted.

What did the court decide?

The anticipatory bail application is dismissed as the applicant failed to show special circumstances warranting direct approach to the High Court.

Dushyant Sharma Vs State of U.P. — Bail and Remand | Allahabad HC (2023)

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Court No. - 85

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9733 of 2022 Applicant :- Dushyant Sharma Opposite Party :- State of U.P. Counsel for Applicant :- Sadhna Upadhyaya,Samriddhi Upadhyaya Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Jyotsna Sharma,J.

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Heard Sri Sant Sharan Upadhyaya, Advocate holding brief for Ms. Samriddhi Upadhyaya, learned counsel for the applicant, Sri O.P. Mishra, learned AGA for the State and perused the papers on record.

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The present application has been moved on behalf of the applicant- Dushyant Sharma seeking anticipatory bail in Case Crime no. 0196 of 2022, under Sections 420, 120-B I.P.C., Sections 6, 10 of the U.P. Public Examinations (Prevention of Unfair Means) Act, 1998 and Section 66 of I.T. (Amendment) Act, 2008, Police Station Kotwali, District Bareilly.

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At the very outset, a preliminary objection has been raised by the State that the applicant has directly approached this Court without exhausting the remedy available to him for approaching the competent Sessions Court first.

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In reply to the above preliminary objection, the judgment of the Full Bench of High Court of Allahabad delivered on 02.03.2020 in Ankit Bharti and Others vs. State of U.P. and Others; 2020 (3) ADJ 575 has been cited by the applicant to stress the point that the applicant has every right to approach the High Court directly.

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5. I went through the aforesaid judgment.

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In Para-12 of the above judgment, the Full Bench has been of the opinion that it is not advisable to either postulate or particularize various circumstances which may be recognized as entitling an individual to move the High Court directly and that it is better to leave it to the judicious discretion of the Court to exercise the powers bearing the facts and exigencies of each particular case in mind.

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In the next para i.e., Para-13, the Court find it fit to quote from the Full Bench decision in Full Bench judgment given in Onkar Nath Agrawal as below:-

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"8. It may, however, be mentioned that inasmuch as Section 438 of the Code of Criminal Procedure, 1973 gives a discretionary power to grant bail, this discretion is to be exercised according to the facts and circumstances of each case. There may be cases in which it may be considered by the High Court to be proper to entertain an application without the applicant having moved the Court of Sessions initially. Similarly there may be cases in which the Court may feel justified in asking the applicant to move the Sessions Court or to refer the matter to that Court. In any case all depends upon the discretion of the Judge hearing the case."

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In Para-17 of the judgment, this necessity was underlined that bald assertions without being evidenced, will not entitle the applicant to invoke the powers of the High Court directly.

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Further in Para-20 of the above judgment, it was held as below:-

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"The special circumstances the existence of which have been held to be a sine qua non to the entertainment of an application for anticipatory bail directly by the High Court must be left for the consideration of the Hon'ble Judge before whom the petition is placed and a decision thereon taken bearing in mind the facts and circumstances of that particular cause. However special circumstances must necessarily exist and be established as such before the jurisdiction of the High Court is invoked. The application must rest on a strong foundation in respect of both the apprehension of arrest as well as in justification of the concurrent jurisdiction of the High Court being invoked directly. The factors enumerated in Vinod Kumar including (A) and (B) as constituting special circumstances do not merit any review except to observe that the existence of any particular circumstance must be convincingly established and not rest on vague allegations. In light of the aforesaid, we answer the Reference as follows: -

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Question (i) and (iv) clearly do not merit any elucidation for it is for the concerned Judge to assess whether special circumstances do exist in a particular case warranting the jurisdiction of the High Court being invoked directly. We answer Questions (ii) and (iii) in the negative and hold that Vinod Kumar does not merit any reconsideration or further explanation. It would be for the concerned Judge to form an opinion in the facts of each particular case whether special circumstances do exist and stand duly established."

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In the light of the opinion of the Full Bench of the High Court, a specific query was raised by me to enlighten whether indeed there was special circumstances justifying the applicant to have directly approached this Court. In answer to this specific query, it is stated that the applicant is resident of District Agra and the FIR has been lodged in District Bareilly. This is the lone statement made by the counsel for the applicant before this Court.

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I myself went through the anticipatory bail application and the affidavit annexed thereof to find out any good ground or reason which the applicant might have mentioned as justification for filing this anticipatory bail application directly before this Court and found Para-6 of the affidavit as below:-

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"That, the Applicant is a permanent resident of Agra U.P. and is not residing within the jurisdiction of the concerned Sessions Court of District Bareilly U.P. where the FIR has been registered and the Applicant is facing a threat of arrest and there is a genuine apprehension of arrest of the Applicant in pursuance of the impugned F.I.R."

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It is argued on behalf of the State that apart from the above bald assertions, nothing has been shown by the applicant to justify his coming directly to this Court; it is argued that in Ankit Bharti case (supra) , it is clearly held that some special circumstance must not only exist but must also be shown to really exist on the basis of some material. It is argued that the application must rest on the strong foundation in respect of both the apprehension of arrest as well as in justification of concurrent jurisdiction of the High Court being

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invoked directly. Apart from the above arguments, learned AGA also pointed out that in this case there are serious allegations against the applicant of his having been involved in a state of art conspiracy to facilitate the passing of candidates appearing in an On-line examination for recruitment in police being conducted at different centres for direct recruitment by using unlawful means. It is contended that the present applicant was Manager/Director of one of such examination centres where unfair means through computer, technical devices and expertise were used to defraud the whole system and this cannot happen without his complicity.

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It is ardently argued that whole of the examination system was high-jacked by the applicant, affecting future of large number of aspiring candidates, who appeared in the examination in a bonafide manner putting their future in jeopardy. Per contra the applicant has several contentions in his defence. I do not proposes to go into the merits of the matter as preliminary objection raised by the other side must in my view, must be decided first.

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As referred to earlier except the cryptic and obscure assertions contained in Para-6 of the application, I failed to find any other fact to engage my attention though the counsel for the applicant incessantly tried to pump life into it without having any material to substantiate. Indisputably the existence of special circumstances in sine qua non to the entertainment of application for anticipatory bail directly by the High Court as held by the Full Bench decision of this Court. It may be noted that the mentioning of special circumstance is not an empty ritual. The onus lies on the applicant to demonstrate by furnishing some material convincing the Court that indeed some good reason or circumstance existed which compelled the applicant to approach directly to this Court. This requirement cannot be dealt in a superficial or casual manner so as to give avenue to unscrupulous litigant to exploit the same. In my view the applicant has utterly failed to show that there is substance in his assertions hence in my view before coming to this Court he should have approached the competent Sessions Court.

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In view of the above, this anticipatory bail application is dismissed .

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This dismissal shall not be construed to mean that the applicant has lost opportunity to suitably apply before the concerned Sessions Court.

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Order Date :- 21.2.2023 #Vikram/-

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Digitally signed by :- VIKRAM GUPTA High Court of Judicature at Allahabad

Dushyant Sharma v. State of U.P.

Case brief

What is this about?

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Dushyant Sharma v. State of U.P.

Case brief

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