Shail Devi v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12954 of 2023 Applicant :- Shail Devi Opposite Party :- State of U.P. Counsel for Applicant :- Sanjeev Kumar,Adya Prasad Tewari Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1This application has been moved on behalf of the applicant - Shail Devi seeking anticipatory bail in Case Crime No.0053 of 2023, under Sections 420, 409 IPC, P.S. Tarkulwa, District Deoria.

¶2Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶3It has been submitted by the learned counsel for the applicant that applicant is innocent and she has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against her. Allegations levelled against the applicant are false. It is further submitted that the C.J.M., Deoria, while considering the application u/s 156 (3) Cr.P.C., called upon the report from D.P.R.O., Deoria upon which the inspection of the work done by the applicant during her tenure since 2010 to 2015 was made on

13.1.2023 and the utilization of money was found suspicious with regard to point no. 2 to 15 and with regard to point no. 1 and 16 to 53, no any misappropriation of fund was found in the inspection. It is also submitted that by way of the supplementary affidavit all the related documents, payment receipts, bill voucher, cash book and papers regarding completion of work have been submitted before this Court. The investigation of the case is going-on and charge-sheet has not been filed. It is further submitted that F.I.R. was lodged about 11-12 years after the alleged offence of embezzlement of public fund without any plausible explanation regarding the delay. It is also submitted that F.I.R. was challenged before this Court by way of Criminal Misc. Writ Petition No. 6092 of 2023 which was disposed of vide order dated 31.5.2023 without granting any relief to the applicant. It is further submitted that F.I.R. in the matter has been lodged only on the basis of suspicion. It has been submitted that in case applicant is granted anticipatory bail, she will not misuse the liberty of bail and will co-operate in the investigation and would obey all conditions of bail.

¶4Learned A.G.A. has opposed the prayer for anticipatory bail.

¶5I have considered the rival submissions made by the learned counsel for the parties.

¶6From the perusal of the record it reveals that the applicant, who happens to be the Ex-Gram Pradhan, was charged with embezzlement of public fund and without completion of work payment was ordered to be made by him. The embezzlement is said to be committed in the year 2012-13. F.I.R. was lodged on the basis of an order passed on the application under Section 156(3) CrPC and investigation is going on. It also reveals from the perusal of the record that documents which are said to be not produced at the time of enquiry made by Zila Panchayat Raj Adhikari, have been submitted before this Court by way of supplementary affidavit. Applicant is said to be cooperative in the investigation.

¶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, likelihood 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, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on 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) CrPC before the Competent Court.

¶10The application is allowed accordingly.

¶11In the event of arrest of the applicant, she shall be released on anticipatory bail on her 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 herself 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 she has passport, the same shall be deposited by her 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 protection granted to the applicant. Order Date :- 24.11.2023 ss High Court of Judicature at Allahabad High Court of Judicature at Allahabad