Rajendra Yadav Vs State of U.P.

Neutral Citation No. - 2023:AHC:126199

Court No. - 75

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25319 of 2023

Applicant :- Rajendra Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Sheo Ram Singh,Ravindra Kumar Yadav Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Sheo Ram Singh, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application for bail has been filed by the applicant Rajendra Yadav, seeking is enlargement on bail in Case Crime No. 215 of 2023 under Sections 419, 420, 467, 468, 471, 120-B I.P.C. and Section 12 Passport Act and Section 8/13 Prevention of Corruption Act, Police Station- Khalilabad(Kotwali) District- Sant Kabir Nagar during the pendency of trial.

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Learned counsel for the applicant contends that in the F.I.R. giving rise to this application, there are three named accused in the F.I.R. The anticipatory bail application of named accused SubInspector Kameshwar Mishra was rejected by this Court vide order dated 24.04.202318236 passed in Criminal Misc. Anticipatory Bail Application No. 4207 of 2023 (Kameshwar Mishra Vs. State of U.P.). Subsequently, the bail application of named accused Manoj Kumar Patel was rejected by this Court vide oder dated 24.04.2023 passed in Criminal Misc. Bail Application No. 19675 of 2023 (H.C. Manoj Kumar Patel Vs. State of U.P.). The bail application of named accused Virendra Yadav was allowed by this Court vide order dated 25.04.2023 passed in Criminal Misc. Bail Application No. 18236 of 2023 (Virendra Vs. State U.P.). Thereafter, bail application of not named accused Sanjay Yadav was allowed by this Court vide order dated 31.05.2023 which is extracted here in under:

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"1. Heard Mr. Vivekanand Yadav, the learned counsel for applicant and the learned A.G.A. for State.

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2. Perused the record.

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3. This application for bail has been filed by applicant Sanjay Yadav seeking his enlargement on bail in Case Crime No.215 of 2023, under Section 419, 420, 467, 468, 471, 120-B I.P.C. Section 12 Passport Act and Section 8/13 Prevention of Corruption Act, Police Station Khalilabad, (Kotwali), District Sant Kabir Nagar during the pendency of trial.

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4. At the very outset, the learned counsel for applicant contends that there are three named accused in the F.I.R. All the three named accused have approached this Court. The details of the orders passed on the bail applications/anticipatory bail applications of named accused are as under:-

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(i). Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 4207 of 2023 (Kameshwar Mishra Vs. State of U.P.)

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"Heard Mr. Rajiv Lochan Shukla, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application for anticipatory bail has been filed by applicantKameshwar Mishra seeking anticipatory bail in connection with Case Crime No. 215 of 2023, under Section 419, 420, 120B IPC, Sections 66, 66C of the Information Technology Act, Section 29 of Police Act and Sections 7/8/13 of the Prevention oif Corruption Act, Police StationKhalilabad, District-Sant Kabir Nagar.

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Record shows that an FIR dated 07.03.2021 was lodged by first informant-Anshuman Mishra and was registered as Case Crime No. 215 of 2023, under Section 419, 420, 120B IPC, Sections 66, 66C of the Information Technology Act, Section 29 of Police Act and Sections 7/8/13 of the Prevention oif Corruption Act, Police Station-Khalilabad, DistrictSant Kabir Nagar. In the aforesaid FIR, 3 persons namely (1) SI, Kameshwar Mishra and (2) Head Constable Manoj Kumar Patel have been nominated as named accused.

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At the very outset, the learned A.G.A. submits that since applicant has not been co-operating in the investigation of aforementioned case crime number, coercive process under Section 82 Cr.P.C. has been initiated against applicant. He has then referred to the judgment of Supreme Court in State of M.P. Vs. Pradeep Sharma (2014) 2 SCC 171 and on basis thereof, he submits that since applicant has not been co-operating in the investigation, therefore, no indulgence be granted by this Court in favour of applicant.

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As a result, present application is liable to be dismissed at this stage.

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When confronted with above, the learned counsel for applicant submits that FIR was lodged on 07.03.2021 but without wasting any time, applicant approached this Court by filing Criminal Misc. Writ Petition No. 4420 of 2023 (Kameshwar Kumar Mishra Vs. State of U.P. and 2 Others) which was disposed of vide order dated 22.03.2023. Thereafter, applicant approached court below by means of Anticipatory Bail

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Application No. 2192 of 2023 on 29.03.2023 which came to be dismissed by court below vide order dated 05.04.2023. Immediately thereafter, the present application for anticipatory bail was filed on 11.04.2023. He further submits that applicant is a police personnel and therefore, it cannot be said that applicant has been absconding from the proceedings of aforementioned case crime number.

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Be that as it may, it is an undisputed fact that coercive process under Section 82 Cr.P.C. has already been issued against applicant on account of his non-cooperation in the investigation of concerned case crime number. In view of above, the ratio laid down by Apex Court in the case of Pradeep Sharma (Supra) is clearly attracted in the present case.

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As a result, present application for anticipatory bail fails and is liable to be rejected.

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It is accordingly rejected. " (ii). Criminal Misc. Bail Application No. 19675 of 2023 (H.C. Manoj Kumar Patel Vs. State of U.P.

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"Heard Mr. Akhil Ranjan, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application for bail has been filed by applicant-Manoj Kumar Patel seeking his enlargement on bail in Case Crime No. 215 of 2023, under Sections 419, 420, 120B IPC, Sections 66, 66C of the Information Technology Act, Section 29 of Police Act and Sections 7/8/13 of the Prevention of Corruption Act, Police Station-Khalilabad, District-Sant Kabir Nagar.

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At the very outset, the learned A.G.A. submits that anticipatory bail application of co-accused, Kameshwar Mishra has already been rejected by this Court vide order dated 24.04.2023 passed in CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4207 of 2023 (Kameshwar Mishra Vs. State of U.P). For ready reference, the same is reproduced hereinunder:-

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"Heard Mr. Rajiv Lochan Shukla, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application for anticipatory bail has been filed by applicantKameshwar Mishra seeking anticipatory bail in connection with Case Crime No. 215 of 2023, under Section 419, 420, 120B IPC, Sections 66, 66C of the Information Technology Act, Section 29 of Police Act and Sections 7/8/13 of the Prevention oif Corruption Act, Police StationKhalilabad, District-Sant Kabir Nagar.

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Record shows that an FIR dated 07.03.2021 was lodged by first

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informant-Anshuman Mishra and was registered as Case Crime No. 215 of 2023, under Section 419, 420, 120B IPC, Sections 66, 66C of the Information Technology Act, Section 29 of Police Act and Sections 7/8/13 of the Prevention oif Corruption Act, Police Station-Khalilabad, DistrictSant Kabir Nagar. In the aforesaid FIR, 3 persons namely (1) SI, Kameshwar Mishra and (2) Head Constable Manoj Kumar Patel have been nominated as named accused.

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At the very outset, the learned A.G.A. submits that since applicant has not been co-operating in the investigation of aforementioned case crime number, coercive process under Section 82 Cr.P.C. has been initiated against applicant. He has then referred to the judgment of Supreme Court in State of M.P. Vs. Pradeep Sharma (2014) 2 SCC 171 and on basis thereof, he submits that since applicant has not been co-operating in the investigation, therefore, no indulgence be granted by this Court in favour of applicant.

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As a result, present application is liable to be dismissed at this stage.

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When confronted with above, the learned counsel for applicant submits that FIR was lodged on 07.03.2021 but without wasting any time, applicant approached this Court by filing Criminal Misc. Writ Petition No. 4420 of 2023 (Kameshwar Kumar Mishra Vs. State of U.P. and 2 Others) which was disposed of vide order dated 22.03.2023. Thereafter, applicant approached court below by means of Anticipatory Bail Application No. 2192 of 2023 on 29.03.2023 which came to be dismissed by court below vide order dated 05.04.2023. Immediately thereafter, the present application for anticipatory bail was filed on 11.04.2023. He further submits that applicant is a police personnel and therefore, it cannot be said that applicant has been absconding from the proceedings of aforementioned case crime number.

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Be that as it may, it is an undisputed fact that coercive process under Section 82 Cr.P.C. has already been issued against applicant on account of his non-cooperation in the investigation of concerned case crime number. In view of above, the ratio laid down by Apex Court in the case of Pradeep Sharma (Supra) is clearly attracted in the present case.

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As a result, present application for anticipatory bail fails and is liable to be rejected.

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It is accordingly rejected.

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Order Date :- 24.4.2023"

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Learned A.G.A. contends that case of present applicant and aforementioned co-accused is almost similar and identical, therefore, no separation or segregation can be made with regard to the role of the present applicant in the crime in question. He, therefore, submits that bail application of present applicant is also liable to be rejected.

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When confronted with above, the learned counsel for applicant referred to the order dated 25.04.2023 passed in Criminal Misc. Bail Application

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No. 18236 of 2023 (Virendra Vs. State of U.P.). For ready reference, the same is reproduced hereinunder:

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"1. Heard Mr. Saroj Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State.

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2. Perused the record.

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3. This application for bail has been filed by applicant-Virendra seeking his enlargement on bail in Case Crime No.215 of 2023, under Sections 419, 420, 120B I.P.C., Sections 66, 66C of I.T. Act and Sections 8/13 of Prevention of Corruption Act, Police Station - Khalilabad, District - Sant Kabir Nagar during the pendency of trial.

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4. Record shows that an F.I.R. dated 07.03.2023 was lodged by first informant, Anshuman Mishra and was registered as Case Crime No.215 of 2023, under Sections 419, 420, 120B I.P.C., Sections 66, 66C of I.T. Act, Section 29 Police Act, 1861 and Sections 7, 8 & 13 of Prevention of Corruption Act, 1988. In the aforesaid F.I.R. three persons, namely, SubInspector, Kameshwar Mishra, Manoj Kumar Patel and applicantVirendra Yadav have been nominated as named accused.

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5. Learned counsel for applicant submits that applicant-Virendra is not a public servant, therefore, the provisions of Sections 7, 8 and 13 of the Prevention of Corruption Act are not attracted against applicant. Since, the applicant is not a police personnel, therefore, the provisions of Section 29 of Police Act, are also not attracted against the applicant. Rest of the charging sections are otherwise triable by Magistrate and carry maximum sentence of seven years. Perusal of the F.I.R. shows that main role has been assigned to other two named co-accused i.e. Kameshwar Mishra and Manoj Kumar Patel. As such case of applicant is clearly distinguishable from aforesaid named co-accused. Applicant is simply a Passport Agent and no cheating could be conducted by the applicant with the Passport department. Applicant has falsely been implicated under Section 120-B I.P.C. Offence under Section 120-B I.P.C. is subject to trial evidence. Applicant is in jail since 07.03.2023. As such, applicant has undergone more than 1 month and 15 days of incarceration. Applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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6. Per contra, the learned A.G.A.has opposed the present application for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant at this stage.

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7. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the main role assigned in the F.I.R. is to other two named accused i.e. Kameshwar Mishra and Manoj Kumar Patel, the case of present applicant is clearly cheating whichever for other named coaccused. The offence complained of against applicant is punishable under Section 120-B I.P.C. which is subject to trial evidence, there being clean

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antecedents of applicant as he has no criminal history to his credit against the applicant, the applicant is simply a Passport Agent, the provision of Prevention of Corruption Act being not applicable to the applicant as he is not a public servant, but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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8. Accordingly, bail application is allowed.

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9. Let the applicant-Virendra involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

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(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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10. However, it is made clear that any willful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 25.4.2023"

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Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that there is nothing to dislodge the observations made in paragraph 7 of the order dated 25.04.2023.

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As a result, present application for bail fails and is liable to be rejected.

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It is accordingly rejected." (iii). Criminal Misc. Bail Application No. 18236 of 2023 (Virendra Vs. State of U.P.)

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"1. Heard Mr. Saroj Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State.

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2. Perused the record.

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3. This application for bail has been filed by applicant-Virendra seeking his enlargement on bail in Case Crime No.215 of 2023, under Sections 419, 420, 120B I.P.C., Sections 66, 66C of I.T. Act and Sections 8/13 of Prevention of Corruption Act, Police Station - Khalilabad, District - Sant Kabir Nagar during the pendency of trial.

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4. Record shows that an F.I.R. dated 07.03.2023 was lodged by first informant, Anshuman Mishra and was registered as Case Crime No.215 of 2023, under Sections 419, 420, 120B I.P.C., Sections 66, 66C of I.T. Act, Section 29 Police Act, 1861 and Sections 7, 8 & 13 of Prevention of Corruption Act, 1988. In the aforesaid F.I.R. three persons, namely, SubInspector, Kameshwar Mishra, Manoj Kumar Patel and applicantVirendra Yadav have been nominated as named accused.

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5. Learned counsel for applicant submits that applicant-Virendra is not a public servant, therefore, the provisions of Sections 7, 8 and 13 of the Prevention of Corruption Act are not attracted against applicant. Since, the applicant is not a police personnel, therefore, the provisions of Section 29 of Police Act, are also not attracted against the applicant. Rest of the charging sections are otherwise triable by Magistrate and carry maximum sentence of seven years. Perusal of the F.I.R. shows that main role has been assigned to other two named co-accused i.e. Kameshwar Mishra and Manoj Kumar Patel. As such case of applicant is clearly distinguishable from aforesaid named co-accused. Applicant is simply a Passport Agent and no cheating could be conducted by the applicant with the Passport department. Applicant has falsely been implicated under Section 120-B I.P.C. Offence under Section 120-B I.P.C. is subject to trial evidence. Applicant is in jail since 07.03.2023. As such, applicant has undergone more than 1 month and 15 days of incarceration. Applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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6. Per contra, the learned A.G.A.has opposed the present application for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant at this stage.

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7. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the main role assigned in the F.I.R. is to other two named

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accused i.e. Kameshwar Mishra and Manoj Kumar Patel, the case of present applicant is clearly cheating whichever for other named coaccused. The offence complained of against applicant is punishable under Section 120-B I.P.C. which is subject to trial evidence, there being clean antecedents of applicant as he has no criminal history to his credit against the applicant, the applicant is simply a Passport Agent, the provision of Prevention of Corruption Act being not applicable to the applicant as he is not a public servant, but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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8. Accordingly, bail application is allowed.

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9. Let the applicant-Virendra involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

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(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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10. However, it is made clear that any willful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above."

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5. Thereafter, not named accused Abdul Salam approached this Court by means of Criminal Misc. Bail Application No. 21725 of 2023 (Abdul

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Salam Vs. State of U.P.) which was allowed by this Court vide order dated 26.05.2023. For ready reference, the same is extracted hereinunder:-

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"Heard Mr. Saroj Kumar Yadav, the learned counsel for applicant, the learned A.G.A. for State.

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This application for bail has been filed by applicant Abdul Salam seeking his enlargement on bail in Case Crime No. 0215 of 2023, under Sections 420, 120B IPC read with Sections 8/13 of Prevention of Corruption Act, 1988, Police Station Khalilabad (Kotwali), District Sant Kabir Nagar, during the pendency of trial.

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Perused the record.

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Record shows that an F.I.R. dated 07.03.2023 was lodged by first informant, Anshuman Mishra and was registered as Case Crime No.215 of 2023, under Sections 419, 420, 120B I.P.C., Sections 66, 66C of I.T. Act, Section 29 Police Act, 1861 and Sections 7, 8 & 13 of Prevention of Corruption Act, 1988. In the aforesaid F.I.R. three persons, namely, SubInspector, Kameshwar Mishra, Manoj Kumar Patel and applicantVirendra Yadav have been nominated as named accused.

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Learned counsel for applicant contends that applicant is innocent. Appicant is not named in the F.I.R. Applicant is not a Government Servant either. As such, the provisions of Prevention of Corruption Act cannot apply against applicant.

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It is next contended that there are three named accused in the F.I.R. The bail application of named accused Virendra was allowed by this Court, vide order dated 25.4.2023 passed in Criminal Misc. Bail Application No. 18236 of 2023 (Virendra Vs. State of U.P.). For ready reference, the same is reproduced herein under:-

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"1. Heard Mr. Saroj Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State.

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2. Perused the record.

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3. This application for bail has been filed by applicant-Virendra seeking his enlargement on bail in Case Crime No.215 of 2023, under Sections 419, 420, 120B I.P.C., Sections 66, 66C of I.T. Act and Sections 8/13 of Prevention of Corruption Act, Police Station - Khalilabad, District - Sant Kabir Nagar during the pendency of trial.

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4. Record shows that an F.I.R. dated 07.03.2023 was lodged by first informant, Anshuman Mishra and was registered as Case Crime No.215 of 2023, under Sections 419, 420, 120B I.P.C., Sections 66, 66C of I.T. Act, Section 29 Police Act, 1861 and Sections 7, 8 & 13 of Prevention of Corruption Act, 1988. In the aforesaid F.I.R. three persons, namely, SubInspector, Kameshwar Mishra, Manoj Kumar Patel and applicantVirendra Yadav have been nominated as named accused.

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5. Learned counsel for applicant submits that applicant-Virendra is not a public servant, therefore, the provisions of Sections 7, 8 and 13 of the Prevention of Corruption Act are not attracted against applicant. Since, the applicant is not a police personnel, therefore, the provisions of Section 29 of Police Act, are also not attracted against the applicant. Rest of the charging sections are otherwise triable by Magistrate and carry maximum sentence of seven years. Perusal of the F.I.R. shows that main role has been assigned to other two named co-accused i.e. Kameshwar Mishra and Manoj Kumar Patel. As such case of applicant is clearly distinguishable from aforesaid named co-accused. Applicant is simply a Passport Agent and no cheating could be conducted by the applicant with the Passport department. Applicant has falsely been implicated under Section 120-B I.P.C. Offence under Section 120-B I.P.C. is subject to trial evidence. Applicant is in jail since 07.03.2023. As such, applicant has undergone more than 1 month and 15 days of incarceration. Applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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6. Per contra, the learned A.G.A.has opposed the present application for bail. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant at this stage.

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7. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the main role assigned in the F.I.R. is to other two named accused i.e. Kameshwar Mishra and Manoj Kumar Patel, the case of present applicant is clearly cheating whichever for other named coaccused. The offence complained of against applicant is punishable under Section 120-B I.P.C. which is subject to trial evidence, there being clean antecedents of applicant as he has no criminal history to his credit against the applicant, the applicant is simply a Passport Agent, the provision of Prevention of Corruption Act being not applicable to the applicant as he is not a public servant, but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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8. Accordingly, bail application is allowed.

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9. Let the applicant-Virendra involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under

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section 229-A I.P.C..

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

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(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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10. However, it is made clear that any willful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above."

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It is next contended that the bail application of named accused H.C. Manoj Kumar Patel was rejected by this Court, vide order dated 9.5.2023 passed in Criminal Misc. Bail Application No. 19675 of 2023. For ready reference, the same is reproduced herein under:-

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"Heard Mr. Akhil Ranjan, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application for bail has been filed by applicant-Manoj Kumar Patel seeking his enlargement on bail in Case Crime No. 215 of 2023, under Sections 419, 420, 120B IPC, Sections 66, 66C of the Information Technology Act, Section 29 of Police Act and Sections 7/8/13 of the Prevention of Corruption Act, Police Station-Khalilabad, District-Sant Kabir Nagar.

¶109

At the very outset, the learned A.G.A. submits that anticipatory bail application of co-accused, Kameshwar Mishra has already been rejected by this Court vide order dated 24.04.2023 passed in CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4207 of 2023 (Kameshwar Mishra Vs. State of U.P). For ready reference, the same is reproduced hereinunder:-

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"Heard Mr. Rajiv Lochan Shukla, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the record.

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This application for anticipatory bail has been filed by applicantKameshwar Mishra seeking anticipatory bail in connection with Case Crime No. 215 of 2023, under Section 419, 420, 120B IPC, Sections 66, 66C of the Information Technology Act, Section 29 of Police Act and Sections 7/8/13 of the Prevention oif Corruption Act, Police StationKhalilabad, District-Sant Kabir Nagar.

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Record shows that an FIR dated 07.03.2021 was lodged by first informant-Anshuman Mishra and was registered as Case Crime No. 215 of 2023, under Section 419, 420, 120B IPC, Sections 66, 66C of the Information Technology Act, Section 29 of Police Act and Sections 7/8/13 of the Prevention oif Corruption Act, Police Station-Khalilabad, DistrictSant Kabir Nagar. In the aforesaid FIR, 3 persons namely (1) SI, Kameshwar Mishra and (2) Head Constable Manoj Kumar Patel have been nominated as named accused.

¶114

At the very outset, the learned A.G.A. submits that since applicant has not been co-operating in the investigation of aforementioned case crime number, coercive process under Section 82 Cr.P.C. has been initiated against applicant. He has then referred to the judgment of Supreme Court in State of M.P. Vs. Pradeep Sharma (2014) 2 SCC 171 and on basis thereof, he submits that since applicant has not been co-operating in the investigation, therefore, no indulgence be granted by this Court in favour of applicant. As a result, present application is liable to be dismissed at this stage.

¶115

When confronted with above, the learned counsel for applicant submits that FIR was lodged on 07.03.2021 but without wasting any time, applicant approached this Court by filing Criminal Misc. Writ Petition No. 4420 of 2023 (Kameshwar Kumar Mishra Vs. State of U.P. and 2 Others) which was disposed of vide order dated 22.03.2023. Thereafter, applicant approached court below by means of Anticipatory Bail Application No. 2192 of 2023 on 29.03.2023 which came to be dismissed by court below vide order dated 05.04.2023. Immediately thereafter, the present application for anticipatory bail was filed on 11.04.2023. He further submits that applicant is a police personnel and therefore, it cannot be said that applicant has been absconding from the proceedings of aforementioned case crime number.

¶116

Be that as it may, it is an undisputed fact that coercive process under Section 82 Cr.P.C. has already been issued against applicant on account of his non-cooperation in the investigation of concerned case crime number. In view of above, the ratio laid down by Apex Court in the case of Pradeep Sharma (Supra) is clearly attracted in the present case.

¶117

As a result, present application for anticipatory bail fails and is liable to be rejected. It is accordingly rejected. "

¶118

The case of the present applicant is different from the three named accused. As such, applicant is liable to be enlarged on bail. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶119

Per contra, the learned A.G.A. has opposed this application for bail. He submits that since applicant is charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant. It is further contended by the learned A.G.A. that the charge sheet has been submitted against applicant on 1.5.2023.

¶120

Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that applicant is not named in the F.I.R., the applicant not being as Government Servant, therefore, the provisions of Prevention of Corruption Act are not applicable to him, the charge sheet having been submitted, therefore, the evidence sought to be relied upon by the prosecution now stands crystallised, no such circumstance has been pointed out by the learned A.G.A. on the basis of which it can be concluded that custodial arrest of applicant is absolutely necessary during the course of trial, but without making any comment on merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed.

¶121

Let the applicant Abdul Salam involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-

¶122

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

¶123

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..

¶124

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

¶125

(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

¶126

(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

¶127

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above."

¶128

6. On the above premise, he submits that the case of the present applicant is similar and identical to that of co-accused Abdul Salam. Applicant is innocent. He is not named in the F.I.R. There is no such distinguishing feature on the basis of which the case of present applicant could be so distinguished from aforementioned co-accused Abdul Salam so as to deny him the benefit of bail. On the above conspectus and in view of facts and reasons recorded in the order dated 26.05.2023, he submits that applicant is also liable to be enlarged on bail.

¶129

7. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 25.04.2023. As such he has undergone one month of incarceration.

¶130

8. Charge sheet having been submitted, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Upto this stage, no such circumstance has emerged on the basis of which custodial arrest of applicant can be said to be necessary. Reference in this regard is made to the judgment of the Supreme Court in Sumit Subhaschandra Gangwal & Anr. Vs. The State of Maharastra & Anr. 2023 Live Law (SC) 373 (paragraph 5). He, therefore submits that in case applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial.

¶131

9. Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶132

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, complicity of applicant and accusations made coupled with the fact that applicant is not named in the F.I.R., the bail application of the co-accused Abdul has already been allowed by this Court, there being no distinguishing feature to distinguish the case of present applicant from aforementioned co-accused so as to deny him the benefit of bail, the charge-sheet having been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, no such circumstance has been pointed out by the learned A.G.A. that custodial arrest of applicant is absolutely necessary during the pendency of trial, the judgment of the Supreme Court in Sumit Subhaschandra Gangwal(Supra), the clean antecedents of the applicant but without making any comments on the merits of the case, applicant has made out a case for bail.

¶133

11. Accordingly, the bail application is Allowed.

¶134

12. Let the applicant-Sanjay Yadav, be released on bail in aforesaid case

¶135

crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

¶136

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.

¶137

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

¶138

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

¶139

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

¶140

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

¶141

13. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on bail so granted by this Court and the trial court will be at liberty to cancel the bail, after recording the reasons for doing so, in the given case with reference to any of the conditions mentioned above. "

¶142

On the above premise, the learned counsel for applicant contends that the case of present applicant is similar and identical to that of co-accused Sanjay Yadav inasmuch as he is also not named in the F.I.R. The only evidence that has emerged against applicant is that the ID of the applicant was used for obtaining

¶143

passport by another person. Apart from above there does not exist any such distinguishing feature on the basis of which the case of the present applicant could be so distinguished from aforementioned co-accused Sanjay Yadav so as to deny him bail. On the above premise and for the facts and reasons recorded in the bail order dated 31.05.2023. Learned counsel for the applicant contends that since, case of present applicant is similar and identical that of accused Sanjay Yadav, he is also liable to be enlarged on bail.

¶144

Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history on his credit except present one. Applicant is in jail since 25.04.2023. As such he has undergone more than one month and fifteen days of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. It is thus urged that applicant is liable to be enlarged on bail.

¶145

Per contra, the learned A.G.A. has opposed the prayer for bail. However, he he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this state.

¶146

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, acquisitions made and complicity of the applicant coupled with the facts that applicant is not named in F.I.R., the case of present applicant is similar and identical to that of co-accused Sanjay Yadav, there being no distinguishing feature in the case of the present applicant so as to distinguish the case of the present applicant from coaccused Sanjay Yadav in such manner so as to deny him bail, the only evidence that has emerged against the applicant up to this stage is that his ID was used by another candidate for obtaining his passport, the clean antecedents of the applicant, but without making any comment on the merits of the case the applicant has made out a case for bail.

¶147

Accordingly, the bail application is Allowed .

¶148

Let the applicant- Rajendra Yadav, be released on bail in aforesaid case crime number on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

¶149

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT

¶150

THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.

¶151

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

¶152

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

¶153

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

¶154

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

¶155

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

¶156

Order Date :- 12.6.2023 Sumit

¶157

Digitally signed by :- SUMIT KUMAR High Court of Judicature at Allahabad

Rajendra Yadav v. State of U.P.

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Rajendra Yadav v. State of U.P.

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