# Rajesh Kumar v. State of U.P. & Anr

- **Citation:** (2024) 2 ILRA 1292
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Crl. Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 280 of 2024
- **Bench:** Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-kumar-v-state-of-u-p-anr-51338
- **Pages:** 6

## Headnote

G.A.

Anticipatory
Bail-Applicant
was
District
Social Welfare Officer-allegation-he with
the help of his four private computer
operators
misappropriated
the
public
money- FIR was lodged after due enquiry
conducted by three members committeeand after enquiry- committee found the
Applicant
misappropriated
the
public
money -the Court should consider the
nature
of
allegation-
severity
of
punishment,
status/
position
of
the
accused and magnitude of offence alleged
to
have
been
committed-Application
dismissed.
(E-9)
2 All. Rajesh Kumar Vs. State of U.P. & Anr.
1293
Cases cited:

## Text

1292 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances mentioned in Section 34 of
the Arbitration Act, 1996."

16. In view of the foregoing
discussion,
the
impugned
judgment
warrants interference and is hereby set aside to
the extent of modification of rate of interest for
past, pendente lite and future interest.

The 18% per annum rate of interest,
as awarded by the arbitrator on 21.01.1999 (in
Claim No. 9) is reinstated. The respondent-state
is hereby directed to accordingly pay the dues
within 8 weeks from the date of this judgment."

5. Counsel appearing on behalf of the
respondents has submitted that the modification
is only in terms of the interest and reasons have
been provided in the impugned order for
reducing the same.

6. I have perused the documents and the
judgements cited by counsel appearing on
behalf of the petitioner.

7. It is trite law, settled by a catena of
Supreme Court judgements that the Court does
not have the power under Section 34 of
Arbitration
and
Conciliation Act,
1996
(hereinafter referred to as "the Act") to modify
an award. The Court under Section 34(2) of the
Act has the power to sever parts of the award
and set aside the same in toto, if the severance
does not impact the remaining award that is
upheld under Section 34 of the Act. The
principle expounded by the Supreme Court in
Larsen Air Conditioning and Refrigration
Company (supra) is specifically on the point of
the modification of the rate of interest and
Supreme Court has categorically held that no
such modification is permissible under Section
34 of the Act.

8. In the present case, I find that the rate
of interest that was awarded to be paid on the
principle sum was 14% per annum from
25.3.2000 till the payment was made. In the
impugned order this rate of interest has been
reduced to 6% without providing any cogent
reasons for the same. Reduction of interest is
nothing but a modification of the original
arbitration award, and accordingly, the
same is illegal and against the principles
established by the Supreme Court.

9. In the light of the above findings,
the impugned judgement and order is
quashed and set aside. The appeal is,
accordingly, allowed.
----------
(2024) 2 ILRA 1292
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2024

BEFORE

THE HON'BLE SAMEER JAIN, J.

Crl. Misc. Anticipatory Bail Application U/S 438
Cr.P.C. No. 280 of 2024

Rajesh Kumar ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Sujeet Kumar, Ms. Chhaya Gupta

Counsel for the Respondents:
G.A.

Anticipatory
Bail-Applicant
was
District
Social Welfare Officer-allegation-he with
the help of his four private computer
operators
misappropriated
the
public
money- FIR was lodged after due enquiry
conducted by three members committeeand after enquiry- committee found the
Applicant
misappropriated
the
public
money -the Court should consider the
nature
of
allegation-
severity
of
punishment,
status/
position
of
the
accused and magnitude of offence alleged
to
have
been
committed-Application
dismissed.
(E-9)
2 All. Rajesh Kumar Vs. State of U.P. & Anr.
1293
Cases cited:

1. Siddharth Vs St. of U.P.& anr.(2022) 1 SCC
676

2. Siddharam Satlingappa Mhetre Vs St. of Mah.
& ors. (2011) 1 SCC 694

3. Pratibha Manchanda & anr.Vs St. of Har. &
anr.(2023) 8 SCC 181

4. Shri Gurbaksh Singh Sibbia & ors. Vs St. of
Pun. (1980) 2 SCC 565

5. Sushila Aggarwal Vs St. (NCT of Delhi)-2020
SCC online SC 98

(Delivered by Hon'ble Sameer Jain, J.)

1. Heard Ms. Chhaya Gupta, learned
counsel for the applicant and Sri Ravi Kant
Kushwaha, learned A.G.A. for the State.

2. The present anticipatory bail
application has been filed on behalf of the
applicant in F.I.R./Case Crime No. 0646 of
2023, under Sections 420, 467, 468, 471
IPC, Police Station Sadar Bazar, District
Shahjahanpur, with a prayer to enlarge him
on anticipatory bail.

Brief facts

3. FIR of the present case was lodged against
applicant and eight others on 19.09.2023 and
according to the FIR, applicant was District Social
Welfare Officer, Shahjahanpur and he with the help
of
his
four
private
computer
operators
misappropriated the public money of Rs.2 crores 52
lacs 39 thousand with the help of touts and mediators
by changing bank accounts of old age pensioners.

Submissions advanced on behalf of
applicant

4. Learned counsel for the applicant submitted
that entire allegation made against the applicant is
totally false and baseless and applicant never
misappropriated any money. She further submitted
that applicant was transferred to Shahjahanpur in the
month of December, 2021 and on the direction of
Director Social Welfare Officers, Lucknow, U.P., the
work was given to all the Social Welfare Officers to
link the old age pensioners' registration with Aadhar
for authentication and when applicant being District
Social Welfare Officer started to link old age
pensioners' registration with Aadhar then he found
certain irregularities and on 21.02.2023, he himself
informed in writing about irregularities to the Branch
Manager, Baroda U.P. Bank, Karkor, Jayantipur,
Shahjahanpur and requested to stop the withdrawal
of the amount from these accounts of old age
pensioners and thereafter on the basis of a news item
published in a news paper with regard to
irregularities in the account of old age pensioners,
District Magistrate constituted a five members
committee to enquire the matter and after enquiry
committee found that out of 21 old age pensioners'
account only accounts of 9 old age pensioners were
changed and on the basis of the report of five
members committee, applicant was suspended from
his service on 06.04.2023.

5. She further submitted that a subsequent
enquiry was also conducted by three members
committee on the letter issued by one of the Member
of Legislative Assembly and during enquiry, the
three members committee found that there was
a misappropriation of Rs. 2 crores 52 lacs
39 thousands and on the basis of report of
three
members
committee
dated
24.05.2023, the FIR of the present case was
lodged against the applicant and others.

6. She further submitted that as earlier
five
members
committee
found
irregularities with regard to only nine
accounts of old age pensioners, therefore,
the subsequent committee report dated
24.05.2023 does not appear to be correct
one. She further submitted that applicant
never misused his position and he was the
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
person, who pointed out the irregularities in
accounts and also requested to stop the
payments from these accounts. She further
submits, however, due to pressure of work
applicant had to appoint two private
computer operators but merely on this
basis, it cannot be said that he siphoned off
the public money of more than Rs. 2.5
crores with their help.

7. She further submitted that applicant
was appointed in the year 1998 and till
date, his service record was clean and no
complaint was ever lodged against him.
She further submitted that applicant is a
responsible public servant and he is ready
to cooperate with the investigation and if
investigation is conducted properly then
applicant is hopeful that no charge sheet
can be filed against him as he did not
commit any offence.

8. She further submitted that
investigation of the case is still pending and
police is trying to arrest the applicant. She
further submitted that there is no need of
the arrest of the applicant. She further
submitted that if there is no need of the
arrest of an accused then in spite of the fact
that Investigating Officer is having power
to arrest an accused, the accused should not
be arrested.

9. She further submitted that personal
liberty of a person is a fundamental right
provided under Article 21 of Constitution
of India. She placed reliance on the
judgment of the Apex Court in case of
Siddharth Vs. State of Uttar Pradesh and
another (2022) 1 SCC 676

10. She further submitted that as per the
government orders dated 19.07.2005 and
24.05.2012,
it
is
mandatory
to
take
permission of appointing authority of the
public servant before lodging any FIR against
him and in the present matter, in spite of the
fact that applicant is public servant no such
permission from his appointing authority was
taken before lodging FIR of the present case,
therefore, even FIR of the present case
lodged against the applicant is bad.

Submissions advanced on behalf of
State

11.

Per
contra,
learned
AGA
vehemently
opposed
the
prayer
for
anticipatory bail and submitted that applicant
was District Social Welfare Officer posted at
District Shahjahanpur and he misused his
position and misappropriated more than Rs.
2.5 crores and FIR of the present case was
lodged after due enquiry conducted by three
members committee duly constituted under
the law.

12. He further submitted that from the
enquiry report, which has been annexed
alongwith the instant anticipatory bail
application, it reflects that after enquiry,
applicant was found responsible for huge
misappropriation of more than Rs. 2.5 crores.

13. He further submitted that applicant
committed offence under Sections 420, 467,
468 IPC and maximum punishment for the
offence under Section 467 IPC is life
imprisonment.

14.

He
further
submitted
that
considering the fact that huge amount of
Rs.2.5
crores
alleged
to
have
been
misappropriated by the applicant alongwith
other accused persons, applicant should not
be released on anticipatory bail.

15. He further submitted that
applicant has already challenged the FIR of
the present case before Division Bench of
2 All. Rajesh Kumar Vs. State of U.P. & Anr.
1295
this Court in Criminal Misc. Writ Petition
No. 16293 of 2023 and Writ filed by him
has already been dismissed, therefore, it
cannot be said that FIR of the present case
lodged against the applicant is bad.

Analysis

16. I have heard both the parties and
perused the record of the case.

17. From the record, it reflects that
FIR of the present case was lodged after
due enquiry conducted by three members
committee and after enquiry, committee
found that applicant with the help of other
accused persons misappropriated the public
money of more than Rs. 2.5 crores by
manipulating the bank account of old age
pensioners.

18. Applicant is District Social Welfare
Officer and allegation against him is quite
serious. No doubt, personal liberty of a person
is the most cherished fundamental right
provided under Article 21 of Constitution of
India but law is settled that while deciding the
anticipatory bail application, the Court should
also consider the nature of allegation, severity
of punishment, status/ position of the accused
and magnitude of offence alleged to have been
committed by the accused.

19. The Apex Court in the case of
Siddharam Satlingappa Mhetre Vs. State of
Maharashtra and others (2011) 1 SCC 694 in
paragraph no. 112 observed as-:

"122. The following factors and
parameters can be taken into consideration
while dealing with the anticipatory bail:

i. The nature and gravity of the
accusation and the exact role of the accused
must be properly comprehended before arrest is
made;

ii. The antecedents of the applicant
including the fact as to whether the accused has
previously
undergone
imprisonment
on
conviction by a Court in respect of any
cognizable offence;

iii. The possibility of the applicant to
flee from justice;

iv. The possibility of the accused's
likelihood to repeat similar or the other
offences;

v. Where the accusations have been
made only with the object of injuring or
humiliating the applicant by arresting him or
her.

vi. Impact of grant of anticipatory
bail particularly in cases of large magnitude
affecting a very large number of people.

vii. The courts must evaluate the
entire available material against the accused
very carefully. The court must also clearly
comprehend the exact role of the accused in the
case. The cases in which accused is implicated
with the help of Sections 34 and 149 of the
Indian Penal Code,1860 the court should
consider with even greater care and caution
because over implication in the cases is a
matter of common knowledge and concern;

viii. While considering the prayer
for grant of anticipatory bail, a balance
has to be struck between two factors
namely, no prejudice should be caused to
the free, fair and full investigation and
there should be prevention of harassment,
humiliation and unjustified detention of the
accused;

ix.
The
court
to
consider
reasonable apprehension of tampering of
the witness or apprehension of threat to the
complainant;

x. Frivolity in prosecution should
always be considered and it is only the
element of genuineness that shall have to
be considered in the matter of grant of bail
and in the event of there being some doubt
as to the genuineness of the prosecution, in
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
the normal course of events, the accused is
entitled to an order of bail."

20. The Apex Court in case of
Pratibha Manchanda and another Vs.
State of Haryana and another (2023) 8
SCC 181, in paragraph no. 21 also
observed as-:

"21. The relief of Anticipatory
Bail is aimed at safeguarding individual
rights. While it serves as a crucial tool to
prevent the misuse of the power of arrest
and protects innocent individuals from
harassment, it also presents challenges in
maintaining a delicate balance between
individual rights and the interests of
justice. The tight rope we must walk lies in
striking a balance between safeguarding
individual rights and protecting public interest.
While the right to liberty and presumption of
innocence are vital, the court must also consider
the gravity of the offence, the impact on society,
and the need for a fair and free investigation.
The court's discretion in weighing these interests
in the facts and circumstances of each individual
case becomes crucial to ensure a just outcome."

21. It goes without saying that allegations
levelled against applicant are grave in nature.

22. Further, however, learned counsel for
the applicant also contended that FIR of the
present case lodged against the applicant is bad
but as applicant has already challenged the FIR of
the present case before this Court in Criminal
Misc. Writ Petition No. 16293 of 2023 and after
haring the parties, the Division Bench of this
Court has already dismissed his writ petition on
02.11.2023, therefore, it can not said that FIR of
the present case filed against the applicant is bad.

23. Further, as per Section 438 Cr.P.C. (as
per U.P. Amendment Act), "reason to believe that
accused may be arrested on accusation" is the
condition precedent for releasing him on
anticipatory bail. In paragraph no. 6 to the affidavit
applicant expressed his apprehension of arrest as-:

"That
the
applicant
is
having
apprehension of his arrest in Case Crime No. 646
of 2023, under Section 420, 467, 468, 471 of I.P.C,
Police
Station-
Sadar
Bazar,
District-
Shahjahanpur, which does not fail under the
offences provided under sub Section 438 Cr.P.C."

24. Merely on the basis of such averment,
which was made by the applicant in paragraph no.
6 to the affidavit filed in support of the instant
anticipatory bail application, it cannot be said that
he was having reason to believe his arrest. The
apprehension of arrest of accused should be based
on concrete facts and it should not be imaginary.
Mere fear of arrest is not the belief of arrest.

25. The Five Judges Constitution Bench in
case of Shri Gurbaksh Singh Sibbia and others
Vs. State of Punjab (1980) 2 SCC 565
categorically observed in paragraph no. 35 as-:

"35. Section 438(1) of the Code lays
down a condition which has to be satisfied
before anticipatory bail can be granted.
The applicant must show that he has
"reason to believe" that he may be arrested
for a non-bailable offence. The use of the
expression "reason to believe" shows that
the belief that the applicant may be so
arrested must be founded on reasonable
grounds. Mere 'fear' is not 'belief', for
which reason it is not enough for the
applicant to show that he has some sort of
a vague apprehension that some one is
going to make an accusation against him,
in pursuance of which he may be arrested.
The grounds on which the belief of the
applicant is based that he may be arrested
for a non- bailable offence, must be
capable of being examined by the court
objectively, because it is then alone that the
2 All. Sanjay Yadav Pradhan Vs. The State of U.P.
1297
court can determine whether the applicant
has reason to believe that he may be so
arrested. Section 438(1), therefore, cannot
be invoked on the basis of vague and
general allegations, as if to arm oneself in
perpetuity
against
a possible
arrest.
Otherwise, the number of applications for
anticipatory bail will be as large as, at any
rate, the adult populace. Anticipatory bail
is a device to secure the individual's
liberty; it is neither a passport to the
commission of crimes nor a shield against
any and all kinds of accusations, likely or
unlikely."

26. Recently again Five Judges
Constitution Bench of the Apex Court in case
of Sushila Aggarwal Vs. State (NCT of
Delhi)-2020 SCC online SC 98 reaffirmed
the law laid down by the Constitution Bench
in case of Shri Gurbaksh Singh Sibbia (supra)
that belief of arrest of accused should be
based on concrete facts and it cannot be
accepted on the basis of vague averment.

27. In case at hand, FIR of the present
case was lodged in the month of September,
2023 and since then four months have been
passed and till date applicant was not arrested,
therefore, in light of the vague averment made
in paragraph no. 6 of the affidavit filed in
support of the instant anticipatory bail
application with regard to apprehension of
arrest, this Court is of the view that applicant
failed to bring on record any concrete fact and
reason on the basis of which this Court can infer
that he is having apprehension of his arrest in
the instant matter.

28. Further, law is also settled that
power to grant anticipatory bail is an
extraordinary power, however, it is not
necessary to exercise it sparingly only in
exceptional cases but it should be exercised
with
care
and
circumspection.
[see-:
Constitution Bench of the Apex Court in case
of Shri Gurbaksh Singh Sibbia (supra)]. In
view of this Court this extraordinary power
should not be exercised in routine manner,
otherwise provisions of pre arrest bail would
become vulnerable.

29. Therefore, considering the facts and
circumstances of the case discussed above, in
my view, the instant anticipatory bail
application filed by the applicant is devoid of
merit and he is not entitled to be released on
anticipatory bail.

30. Accordingly, without expressing
any opinion upon ultimate merits of the
case either ways which may adversely
affect the trial of the case, the anticipatory
bail application filed by the applicant is
hereby dismissed.

31. It is made clear that observations
made in granting anticipatory bail to the
applicant shall not in any way affect the
learned
trial
Judge
in
forming
his
independent
opinion
based
on
the
testimony of the witnesses.
----------
(2024) 2 ILRA 1297
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.02.2024

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Crl. Misc. Bail Application No. 869 of 2024

Sanjay Yadav Pradhan ...Applicant
Versus
The State of U.P. ...Respondent

Counsel for the Applicant:
Arun Sinha, Ram Chandra Singh, Umang
Agarwal