Bhola Prasad Yadav v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12998 of 2023 Applicant :- Bhola Prasad Yadav Opposite Party :- State of U.P. Counsel for Applicant :- M J Akhtar Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

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

¶2This application has been moved on behalf of the applicant - Bhola Prasad Yadav seeking anticipatory bail in Case Crime No. 422 of 2023, under Sections 419, 420, 467, 468, 471, 120-B IPC, Police Station-Kotwali, District-Maharajganj.

¶3Despite stay order passed by the S.D.M. on 19.5.2016 part of the joint property was sold on 6.4.2023 by the present applicant on the basis of forged and fabricated revenue record, whereas it was a joint family property. FIR was lodged on 29.7.2023 and investigation started, which is going on.

¶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 stay order passed by the S.D.M. dated 19.5.2016 was challenged by the applicant before the High Court and the effect and operation of the order dated 19.5.2016 and 30.12.2022 passed by the Deputy Collector, Maharajganj and the further proceedings of the suit under Section 144 were ordered to be stayed by this Court in Writ-C No. 6028 of 2023 vide order dated 21.02.2023. It is further submitted that after passing of the order of this Court sale deed was executed by the present applicant as no stay order was effective at that time. It is further submitted that matter relates to civil nature and the civil suit is admittedly pending between the parties. It is also submitted that investigation is going on. The present applicant is cooperative with the investigation. He is having no criminal history to his credit and is entitled for 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. opposed the prayer for anticipatory bail. It is vehemently submitted by obtaining forged and fabricated khatauni the sale deed was executed by the present applicant despite the stay order passed by the S.D.M., concerned but however he could not dispute this fact that civil suit between the parties is still pending and co-accused Sriprakash Yadav has been granted interim anticipatory bail by this Court in Cr. Misc. Anticipatory Bail Application No. 10895 of 2023 vide order dated 4.10.2023.

¶6In 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.

¶7In 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.

¶8Considering 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.

¶9The application is allowed accordingly.

¶10In 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.

¶11In 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 :- 11.12.2023 Fhd High Court of Judicature at Allahabad