Chintamani Mishra v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8966 of 2023 Applicant :- Chintamani Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Rama Shankar Mishra Counsel for Opposite Party :- G.A.,Dheeraj Kumar Tiwari,Javed Alam Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant, learned counsel for the informant, learned A.G.A. for the State and perused the record.

¶2This application has been moved on behalf of the applicant - Chintamani Mishra seeking anticipatory bail in Case Crime No. 347 of 2017, under Sections 408, 409, 217, 218, 419, 420, 467, 468, 506, 120B IPC and 7/ 13(1) P.C. Act, Police Station-Ghoorpur, District-Prayagraj.

¶3The applicant, who was a government employee was engaged in a census work and excess amount by way of honorarium was transferred in his bank account, which was enjoyed by him. FIR was lodged on 13.6.2017 and investigation started, which is going on against the present applicant.

¶4It 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. Investigation is going on in the matter. It is further submitted that the applicant has no duty to transfer the amount of honorarium/ wages in connection with census work to another persons engaged in that work. The cheque of excess amount was deposited in the bank account of the applicant by the Tehsildar concerned. It is fairly conceded that the said amount was withdrawn by the applicant from his account but as soon as he came to know that this is an excess amount, the same was returned by the applicant to census clerk Mithlesh Kumar, the co-accused in this matter and this fact has been fairly deposed in para 15 of the affidavit annexed with the anticipatory bail application. It is further submitted that as a matter of fact the present applicant has committed no wrong and no wrongful gain has been made by him in his favour. He is an old and retired person and he has been cooperative throughout the investigation so far having no criminal history and is entitled to anticipatory bail. In case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

¶5Learned A.G.A. and learned counsel for the informant opposed the prayer for anticipatory bail. It is vehemently submitted that there is a big caucus of dishonest employees, who were engaged in the census work and by garbing the public money an embezzlement of huge public fund has been made by all the accused persons including the present applicant but however, the learned A.G.A. at this stage is unable to rebut the submission made in para 15 of the affidavit.

¶6In the present case investigation is going on. The excess amount deposited in the bank account of the present applicant has been returned by him. He is cooperative with the investigation having no criminal history to his credit.

¶7In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held 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.

¶8In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

¶9Considering 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 filing of police report under Section 173(2) Cr.P.C. before the competent Court.

¶10The application is allowed accordingly.

¶11In the event of arrest of the applicant, 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 Station House Officer of the police station concerned with the following conditions:-

(i) The applicant shall make himself available for interrogation by a police officer as and when required.

(ii) 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/her from disclosing such facts to the Court or to any police office.

(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

¶12In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant. Order Date :- 6.11.2023 Fhd High Court of Judicature at Allahabad