# Arvind Shukla v. U.O.I. & Anr

- **Citation:** (2021) 11 ILRA 322
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-22
- **Case number:** Application U/S 482/378/407 No. 5066 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-shukla-v-u-o-i-anr-46533
- **Pages:** 5

## Headnote

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 120B, 420 & 13(2) r/w 13(1)(d) PC Act,
1988-quashing of entire proceedings-petitioner
took a housing loan of which a no dues certificate
had been issued by the Bank to the petitionerpetitioner
was
issued
notice
regarding
irregularities committed in sanctioning housing
loans-trial court took cognizance and summoned
the petitioner alongwith other co-accused-Later
police personnel visited his house and apprised
regarding the pendency of the case and nonbailable
warrant-non-bailable
warrant
only
issued by the trial court because the petitioner
did not appear before the trial court on the date
fixed-petitioner directed to appear before the
learned trial court for interim bail.(Para 1 to 12)

B. The court shall on appearance of an
accused in non-bailable offence who has
neither been arrested by the investigating
agency during investigation nor produced in
custody as envisaged in section 170 Cr.P.C.
call upon the accused to move a bail
application if the accused does not move it
on his own release him on bail as the
circumstances of his having not be arrested
during investigation or not being produced in
custody is itself sufficient to entitle him to be
released on bail. if a person has been at large
and free for several years and has not been
even arrested during investigation, to send
him to jail by refusing bail suddenly, merely
because charge-sheet has been filed is
against the basic principles governing grant
or refusal of bail.(Para 8)

The application is disposed off. (E-6)

List of Cases cited:

## Text

322 INDIAN LAW REPORTS ALLAHABAD SERIES
the order dated 22.10.2021 passed by the
Additional
Sessions
Judge,
Court
No.4,
Sultanpur in Sessions Trial No.116 of 2015.

13. Therefore, liberty is given to the
present petitioners to appear before the court
concerned pursuant to the summoning order
dated 22.10.2021 within three weeks and file
appropriate application of bail and if such
application is filed, the same may be considered
and disposed of with expedition, preferably on
the same day.

14. It is needless to say that the present
petitioners would submit their defence and
bonafide before the learned court below at the
appropriate stage and such bonafide shall be
dealt with and considered by the learned court
below properly.

15. The petition is consigned to record.
----------
(2021)12ILR A322
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.12.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Application U/S 482/378/407 No. 5066 of 2021

Arvind Shukla ...Applicant
Versus
U.O.I. & Anr. ...Opposite Parties

Counsel for the Applicant:
Vijay Kumar Bajapai

Counsel for the Opposite Parties:
Anurag Kumar Singh

A. Criminal Law - Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 120B, 420 & 13(2) r/w 13(1)(d) PC Act,
1988-quashing of entire proceedings-petitioner
took a housing loan of which a no dues certificate
had been issued by the Bank to the petitionerpetitioner
was
issued
notice
regarding
irregularities committed in sanctioning housing
loans-trial court took cognizance and summoned
the petitioner alongwith other co-accused-Later
police personnel visited his house and apprised
regarding the pendency of the case and nonbailable
warrant-non-bailable
warrant
only
issued by the trial court because the petitioner
did not appear before the trial court on the date
fixed-petitioner directed to appear before the
learned trial court for interim bail.(Para 1 to 12)

B. The court shall on appearance of an
accused in non-bailable offence who has
neither been arrested by the investigating
agency during investigation nor produced in
custody as envisaged in section 170 Cr.P.C.
call upon the accused to move a bail
application if the accused does not move it
on his own release him on bail as the
circumstances of his having not be arrested
during investigation or not being produced in
custody is itself sufficient to entitle him to be
released on bail. if a person has been at large
and free for several years and has not been
even arrested during investigation, to send
him to jail by refusing bail suddenly, merely
because charge-sheet has been filed is
against the basic principles governing grant
or refusal of bail.(Para 8)

The application is disposed off. (E-6)

List of Cases cited:

1. Amanpreet Singh Vs C.B.I. thru Director CRLA No.
929 of 2021

2. Siddharth Vs St. of U.P. CRLA NO. 838 of 2021

3. Court on its own Motion Vs C.B.I. (2004) 72 DRJ
629 Para 26

(Delivered by Hon'ble Mrs. Sangeeta Chandra, J.)

(1) Heard the learned counsel for the
parties and perused the record.

(2) This petition has been filed by the
petitioner for the following main prayer:-
11 All. Neeraj Singh & Anr. Vs. State of U.P. & Anr.
323

"For the facts and reasons stated in
the
accompanying
petition
supported
by
Affidavit, it is most respectfully prayed that this
Hon'ble Court may kindly be pleased to quash
the entire proceedings arising out of FIR No:
RC No.0062005A0018/05, dated 30.06.2005U/S
120B,420, IPC & 13(2) r/w 13(1)(d) PC Act
1988 P.S. CBI/ACB Lucknow including the
charge-sheet
dated
12.12.2007
filed
U/S
120B/420/468 and 471 IPC & 13(2) r/w
13(1)(d) PC Act 1988 P.S. CBI/ACB Lucknow
including the cognizance/ summoning order
dated 17.09.2020 and Non-Bailable Warrant
dated 26.11.2021 passed in Criminal Misc, Case
No. 530 of 2020, CBI, ACB, Lucknow Vs. S.N.
Lal & Others pending before the Court of
Additional District & Sessions Judge PC Act /
Special Judge C.B.I. Lucknow, so far as it
relates to the petitioner."

(3) It has been submitted by the learned
counsel for the petitioner that the petitioner had
taken a Housing loan on 30.01.2004 which was
repaid by him in various installments and a
certificate dated 21.06.2018 was issued to him
by the Bank that the Housing loan account has
been closed on 21.06.2018. A No Dues
Certificate had been issued by the Bank to the
petitioner, a copy of which has been filed as
Annexure-5 to the petition. It has been submitted
that on 27.06.2005 the opposite party no.2 wrote
a letter to the Superintendent of Police, CBI Anti
Corruption Branch, Lucknow for lodging the
FIR against Shri S.N. Lal the then Branch
Manager,
SBI,
Mumfordganj,
Allahabad,
alleging various irregularities committed by him
in sanctioning the Housing loan to various
borrowers. The petitioner was issued notice on
22.01.2007 directing him to appear in the office
and explain his case. The petitioner appeared on
08.02.2007 and thereafter nothing was heard by
him of the matter. The petitioner assured that no
case against the petitioner being made out, he
had been exonerated by the Investigating
Agency.
The
Charge-sheet
was
however
submitted by the CBI on 12.12.2007 implicating
the petitioner also alongwith other accused. CBI
Court cancelled the Charge-sheet on 05.06.2008.
Against the order passed by the learned Special
Judge/Anti Corruption Wing, Lucknow, The
CBI filed a Criminal Revision No.498/2008 (D)
and got the matter remanded back to the learned
Trial court to proceed afresh after taking
cognizance.

(4) In pursuance of the order passed by this
Court on 14.11.2019 the learned Trial Court by
its order dated 17.09.2020 took cognizance and
summoned the petitioner alongwith other coaccused. The petitioner was never served any
summons with regard to the pendency of
Criminal Miscellaneous Case No.530/2020
pending in the Court of Additional District &
Sessions Judge, PC Act/Special Judge, C.B.I.,
Lucknow. For the first time, on 16.11.2021 the
police personnel visited his house and apprised
his wife regarding the pendency of the aforesaid
case. After inquiry the petitioner came to know
that the learned Trial court had issued nonbailable warrant against him on 26.11.2021.

(5) Hence this petition has been filed
challenging
the
summoning
order
dated
17.09.2020 and the order issuing non-bailable
warrant dated 26.11.2021.

(6) I have heard the learned counsel for the
petitioner and counsel for the CBI who says that
the summoning order has been issued by the
learned Trial Court after this Court had
remanded the matter to it on 14.11.2019 and
therefore, no interference should be shown in the
summoning order by this Court at this stage.

(7) With regard to non-bailable warrant, it
has been submitted fairly by the learned counsel
for the CBI that it appears that it has been issued
to the petitioner only because he did not appear
after summoning order for which he says that he
had no knowledge earlier.
324 INDIAN LAW REPORTS ALLAHABAD SERIES

(8) Learned counsel for the petitioner has
placed reliance upon the judgment rendered by
the Hon'ble the Supreme Court in Amanpreet
Singh Vs. CBI through Director passed in
Criminal Appeal No.929/2021 decided on
02.09.2021 reported in 2021 SCC Online 941,
where in similar circumstances the Supreme
Court has shown interference relying upon the
observations made by its in Siddharth Vs. State
of U.P. passed in Criminal Appeal No.838/2021,
reported in 2021 SCC Online 615. The Supreme
Court has referred to observation made by the
Delhi High Court in "Court on its own Motion
Vs. CBI" reported in (2004) 72 DRJ 629, in
Paragraph-26 which has been affirmed by the
Court in its order in Paragraph-9. Directions
were issued for the Criminal Court in Paragraph26 of the Delhi High Court judgment which was
quoted with approval by the Supreme Court in
Paragraph-9 of the report. Such directions are
quoted hereinbelow:-

"26. Arrest of a person for less
serious or such kinds of offence or offences
those can be investigated without arrest by the
police cannot be brooked by any civilized
society.

Directions for Criminal Courts:

(1) Whenever officer-in-charge of
police station or Investigating Agency like CBI
files a charge-sheet without arresting the
accused during investigation and does not
produce the accused in custody as referred in
Section 170, Cr.P.C. the Magistrate or the
Court empowered to take cognizance or try
the accused shall accept the charge-sheet
forthwith and proceed according to the
procedure laid down in Section 173, Cr.P.C.
and exercise the options available to it as
discussed in this judgment. In such a case the
Magistrate or Court shall invariably issue a
process of summons and not warrant of arrest.

(ii) In case the Court or Magistrate
exercises the discretion of issuing warrant of
arrest at any stage including the stage while
taking cognizance of the charge sheet, he or it
shall have to record the reasons in writing as
contemplated under Section 87, Cr.P.C. that
the accused has either been absconding or
shall. not obey the summons or has refused to
appear despite proof of due service of
summons upon him.

(iii) Rejection of an application for
exemption from personal appearance on any
date of hearing or even at first instance does
not amount to non-appearance despite service
of summons or absconding or failure to obey
summons and the Court in such a case shall
not issue warrant of arrest and may either
give direction to the accused to appear or
issue process of summons.

(iv)
That
the
Court
shall
on
appearance of an accused in a bailable
offence release him forthwith on his furnishing
a personal bond with or without sureties as
per the mandatory provisions of Section 436,
Cr.P.C.

(v) The Court shall on appearance of
an accused in non-bailable offence who has
neither been arrested by the police/Investigating
Agency during investigation nor produced in
custody as envisaged in Section 170, Cr.P.C.
call upon the accused to move a bail application
if the accused does not move it on his own and
release him on bail as the circumstance of his
having not been arrested during investigation or
not being produced in custody is itself sufficient
to entitle him to be released on bail, Reason is
simple. If a person has been at large and free for
several years and has not been even arrested
during investigation, to send him to jail by
refusing bail suddenly, merely because chargesheet has been filed is against the basic
principles governing grant or refusal of bail."

(9) This Court has carefully gone through
the judgment rendered by the Hon'ble Supreme
Court in Amanpreet Singh Vs. CBI (Supra),
the Supreme Court has made observation in
Paragraphs-10 and 11 affirming the order of the
11 All. Neeraj Singh & Anr. Vs. State of U.P. & Anr.
325
Delhi High Court and directing that the appellant
therein be not arrested. The Paragraphs-10 and
11
of
the
judgment
are
being
quoted
hereinbelow:-

"10. A reading of the aforesaid
shows that it is the guiding principle for a
Magistrate while exercising powers under
Section 170, Cr.P.C. which had been set out.
The Magistrate of the Court empowered to
take cognizance or try the accused has to
accept the charge sheet forthwith and
proceed in accordance with the procedure
laid down under Section 173, Cr.P.C. It has
been rightly observed that in such a case the
Magistrate or the Court is required to
invariably issue a process of summons and
not warrant of arrest. In case he seeks to
exercise the discretion of issuing warrants
of arrest, he is required to record the
reasons as contemplated under Section 87,
Cr.P.C. that the accused has either been
absconding or shall not obey the summons
or has refused to appear despite proof of
due service of summons upon him. In fact
the observations in Sub-para (ii) above by
the High Court are in the nature of caution.

11. In so far as the present case is
concerned and the general principles under
Section 170 Cr.P.C., the most apposite
observations are in sub-para (v) of the High
Court judgment in the context of an accused
in a non-bailable offence whose custody was
not
required
during
the
period
of
investigation. In such a scenario, it is
appropriate that the accused is released on
bail as the circumstances of his having not
been arrested during investigation or not
being produced in custody is itself sufficient
to entitle him to be released on bail. The
rationale has been succinctly set out that if
a person has been enlarged and free for
many years and has not even been arrested
during Investigation, to suddenly direct his
arrest and to be incarcerated merely
because charge sheet has been filed would
be contrary to the governing principles for
grant of bail. We could not agree more with
this."

The Supreme Court had thereafter
directed the learned Trial Court to grant bail
to the appellant on the next date on terms
and conditions to its satisfaction.

(10) It has been submitted on the basis
of such judgment rendered by Hon'ble
Supreme Court in Amanpreet Singh that the
petitioner has remained completely unaware
of the proceedings before the High Court till
16.11.2021, and he was not arrested by the
Investigating
Agency
earlier
and
only
because non-bailable warrant has been
issued by the learned Trial Court, he should
not now be arrested and sent to jail.

(11) Having considered the arguments
raised by the learned counsel for the
petitioner and the learned counsel appearing
for the CBI, this Court finds that the
observation in Amanpreet Singh related to a
case where Amanpreet Singh had been given
the liberty to continue to appear before the
learned Trial Court through virtual mode in
the prevailing circumstances of Covid-19
Pandemic, and he had continued to appear
thereafter. In the case of the petitioner nonbailable warrant has only been issued by the
learned Trial Court because the petitioner
has not appeared before the learned Trial
Court on the date fixed.

(12) This petition is finally disposed of
with a direction to the petitioner to appear
before the learned Trial Court through
counsel and apply for interim bail which
shall be considered by the learned Trial
Court and appropriate orders be passed
thereon. His regular bail application shall
also be considered expeditiously thereafter.
----------
326 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)12ILR A326
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.11.2021

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Application U/S 482 No. 19009 of 2021

Pawan Kumar ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Sri Syed Mohammad Abbas Abdy

Counsel for the Opposite Parties:
A.G.A.

A. Criminal Law -Code of Criminal Procedure,
1973-Section 482 - Indian Penal Code, 1860Sections 420, 467, 468, 471-quashing of entire
proceedings-applicant mutated the land of the
first informants in his favour on the basis of
forged sale deed-when the first informants
came to know about fake registration of the
sale deed, the first information report was
lodged-dispute
raised
was
a
purely
civil
dispute-applicant filed a suit against first
informants with regard to the property in
question for permanent injunction-the same
was granted-the Investigating officer filed
chargesheet despite the fact that the matter
with regard to the same property, is pending
for
consideration
before
the
civil
courtMagistrate did not apply his judicial mind at
the time of taking cognizance in an arbitrary
manner on printed proforma-therefore, the
impugned order liable to be set aside-the
matter is remitted to the Chief Judicial
Magistrate to pass fresh cognizance order in
accordance with law after applying judicial
mind.(Para 1 to 25)

B. It is a position of law that before a
Magistrate
can
be
said
to
have
taken
cognizance of an offence, it is imperative that
he must take notice of the accusations and
apply his mind to the allegations made in the
police report. However, a Magistrate is not
required to pass a detailed reasoned order at
the
time
of
taking
cognizance
on
the
chargesheet. But it does not mean that an
order of taking cognizance can be passed just
by filling up the blanks on a printed proforma.
A judicial order cannot be allowed to be passed
in such a manner. (Para 9 to 23)

The application is disposed off. (E-6)

List of Cases cited:

1. Ankit Vs St. of U.P. & anr (2010) 1 JIC 432.

2. Fakhurddin Ahmad Vs St. of Uttaranchal (2008) 17
SCC 157

3. Darshan Singh Ram Kishan Vs St. of Mah. (1971)
AIR SC 2372

4. Devarapally Lakshminarayana Reddy & ors.. Vs V.
Narayana Reddy & ors. (1976) AIR SC 1672

5. St. of W.B. & anr. Vs Mohd. Khalid & ors. (1995) 1
SCC 684

6. Fakhurddin Ahmad Vs St. of Uttaranchal (2008) 17
SCC 157,

7. Ajit Kumar Palit Vs St. of W.B. (1963) AIR SC 765,
P.770 para 19

8. Emperor Vs Sourindra Mohan Chuckerbutty (1910)
ILR 37 Cal 412 P. 416

9.
Chief
Enforcement
Officer
Vs
Videocon
International Ltd.(2008) 2 SCC 492

10. Prasad Shrikant Purohit Vs St. of Mah. & anr.
(2015) 7 SCC 440

11. Gopal Marwari Vs Emperor (1943) AIR P. 245

12. R.R. Chari Vs St. of U.P.(1951) AIR SC 207

13. Megh Nath Gupta & anr. Vs St. of U.P. & anr.
(2008) 62 ACC 826,

14. Deputy Chief Controller Import & Export Vs
Roshan Lal Agarwal (2003) 4 SCC 139

15.
UP
Pollution
Control
Board
Vs
Mohan
Meakins(2000) 3 SCC 745