Shiv Kumar v. State of U.P

Court No. - 71 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13394 of 2023 Applicant :- Shiv Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Dhiraj Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Shekhar Kumar Yadav,J.

¶1Heard Sri Dhiraj Kumar Pandey, learned counsel for the applicant and learned Additional Government Advocate for the State.

¶2This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.68 of 1988, under Sections 171-G, 120-B, 466, 471 I.P.C., P.S.- Fatehpur, District-Saharanpur.

¶3Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. He submitted that the applicant is old person aged about 66 years, he is retired from service on 31.12.219. He submitted that there is no requirement of custodial interrogation of the applicant. He submitted that earlier the applicant has approached this Court in Application U/S 482 being Application No.12755 of 1988 (Shiv Kumar Saini Vs. State of U.P. and another) and co-ordinate Bench of this Court vide order dated 12.12.1988 stayed the proceedings of the court below which was finally disposed vide order dated

31.7.1997. He submitted that the applicant was not aware of the order dated 31.7.1997 and no N.B.W. as well as no proceedings under Sections 82 & 83 Cr.P.C. has been initiated against the applicant. Learned counsel for the applicant has drawn the attention of this Court towards the findings of the court below wherein the court below has given findings that the order dated 12.12.1988 passed by this Court staying the further proceedings of the court below, dismissed and interim protection was vacated in light of the judgment of the Apex Court in the case of Asian Resurfacing of Road Agency Private Ltd. and another Vs. Central Bureau of Investigation (2018) 16 SCC 299. Thereafter, the applicant moved anticipatory bail application before the court below which was rejected vide its order dated 3.11.2023, hence, the present anticipatory bail application. He further submitted that the court below may be directed to expedite the matter within stipulated time period. Learned counsel for the applicant further submitted that applicant has apprehension of imminent arrest and in case, applicant is released on anticipatory bail, she will not misuse the liberty and would co-operate with the trial.

¶4Learned A.G.A. has opposed the prayer for anticipatory bail of the applicants but could not dispute the submissions advanced by learned counsel for the applicants.

¶5Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

¶6In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant-Shiv Kumar, involved in the aforesaid case crime be released on anticipatory bail on furnishing a personal bond of Rs.50,000/-with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

(i) The applicant shall co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation.

(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 from disclosing such facts to the Court or to any police officer.

(iii) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

(iv) The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.

(v) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.

(vi) In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC

98.

(vii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against his in accordance with law.

¶7In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

¶8The trial court is directed to expedite the trial, expeditiously, in accordance with law, within a period of six months from today.

¶9With the aforesaid observations/ directions, the application stands allowed. Order Date :- 12.12.2023 Krishna* High Court of Judicature at Allahabad