# Sukumar Jain (Anticipatory Bail) v. U.O.I

- **Citation:** (2021) 2 ILRA 864
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-12
- **Case number:** Bail No. 5883 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sukumar-jain-anticipatory-bail-v-u-o-i-46830
- **Pages:** 7

## Headnote

A. Criminal law - Code of Criminal
Procedure - Sections 82, 195 - Indian
Penal Code - Sections 201, 204, 409, 420,
467, 468, 471, 477(A) - Prevention of
Corruption Act - Sections 13(1)(c) & (d) -
Information
Technology
Act,
2000
-
Section 66 - Anticipatory bail - Normally a
person who has been declared as an
absconder/proclaimed
offender
is
not
entitled to be granted anticipatory bail.
Court has used the word "normally", meaning
thereby the Court itself was aware that there
are certain other factors which may be duly
considered
by
the
Courts
in
exercising
discretionary power for grant of bail, including
cases where process u/s 82 Cr.P.C. has been
initiated. (Para 11)

B.
The
bail
decision
is
made
after
considering
variety
of
circumstances
justifying the grant or refusal of bail. In
case proceedings u/s. 82 Cr.P.C. have been
initiated, declaring the applicant a proclaimed
offender, then it would be a relevant fact, while
considering the application for anticipatory bail,
but it is not necessary that the anticipatory bail
application ought to be rejected only on the
ground that a person has been declared
absconder/proclaimed offender. Even otherwise
learned counsel for the respondent could not
point out any bar provided in Section 82 or 435
Cr.P.C. where a person could be disentitled for
anticipatory bail where proceedings u/s 82
Cr.P.C. have commenced. (Para 14)

C. While considering the application for
anticipatory bail it is also relevant to
consider the stage at which it is sought.
(Para 15)

Considering the entire set of facts, specially that
the applicant is a retired Government servant,
aged about 65 years, he had participated in the
investigation, there are no chances of his fleeing
from justice and also that he has assailed his
prosecution
before
the
High
Court
in
proceedings u/s 482 Cr.P.C. on the ground of
want of sanction, are certain facts which have
persuaded this Court to favourably consider the
present anticipatory bail application filed by the
applicant. Hence without expressing any opinion
on the merits of the case and considering the
nature of accusations and antecedents of
applicant, the applicant may be enlarged on
anticipatory bail. (Para 16, 17)

Anticipatory bail application allowed. (E-3)

Precedent followed:

## Text

864 INDIAN LAW REPORTS ALLAHABAD SERIES
anarchy, existing earlier, in the hands of
Promoters.

24. Thus, for all the reasons, we are
unable to accept any of the arguments
raised by the counsel for the petitioner. All
the
writ
petitions
are
accordingly
dismissed, however, with the liberty to
avail the remedy of appeal if other than the
issue decided by us remains, which may
include the issue towards interest.
----------
(2021)02ILR A864
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.02.2021

BEFORE

THE HON'BLE ALOK MATHUR, J.

Bail No. 5883 of 2020

Sukumar Jain (Anticipatory Bail)
 ...Applicant
Versus
U.O.I. ...Opposite Party

Counsel for the Applicant:
Amrendra Singh, Diwakar Singh

Counsel for the Opposite Party:
G.A., Anurag Singh

A. Criminal law - Code of Criminal
Procedure - Sections 82, 195 - Indian
Penal Code - Sections 201, 204, 409, 420,
467, 468, 471, 477(A) - Prevention of
Corruption Act - Sections 13(1)(c) & (d) -
Information
Technology
Act,
2000
-
Section 66 - Anticipatory bail - Normally a
person who has been declared as an
absconder/proclaimed
offender
is
not
entitled to be granted anticipatory bail.
Court has used the word "normally", meaning
thereby the Court itself was aware that there
are certain other factors which may be duly
considered
by
the
Courts
in
exercising
discretionary power for grant of bail, including
cases where process u/s 82 Cr.P.C. has been
initiated. (Para 11)

B.
The
bail
decision
is
made
after
considering
variety
of
circumstances
justifying the grant or refusal of bail. In
case proceedings u/s. 82 Cr.P.C. have been
initiated, declaring the applicant a proclaimed
offender, then it would be a relevant fact, while
considering the application for anticipatory bail,
but it is not necessary that the anticipatory bail
application ought to be rejected only on the
ground that a person has been declared
absconder/proclaimed offender. Even otherwise
learned counsel for the respondent could not
point out any bar provided in Section 82 or 435
Cr.P.C. where a person could be disentitled for
anticipatory bail where proceedings u/s 82
Cr.P.C. have commenced. (Para 14)

C. While considering the application for
anticipatory bail it is also relevant to
consider the stage at which it is sought.
(Para 15)

Considering the entire set of facts, specially that
the applicant is a retired Government servant,
aged about 65 years, he had participated in the
investigation, there are no chances of his fleeing
from justice and also that he has assailed his
prosecution
before
the
High
Court
in
proceedings u/s 482 Cr.P.C. on the ground of
want of sanction, are certain facts which have
persuaded this Court to favourably consider the
present anticipatory bail application filed by the
applicant. Hence without expressing any opinion
on the merits of the case and considering the
nature of accusations and antecedents of
applicant, the applicant may be enlarged on
anticipatory bail. (Para 16, 17)

Anticipatory bail application allowed. (E-3)

Precedent followed:

1. N.K. Ganguli Vs C.B.I., (2016) 2 SCC 143
(Para 6)

2. Siddharam Satlingappa Mhetre Vs St. of Mah.,
(2011) 1 SCC 694 (Para 10)

3. Lavesh Vs State (NCT of Delhi, (2012) 8 SCC
730 (Para 11)
2 All. Sukumar Jain (Anticipatory Bail) Vs. U.O.I.
865
4. Gurbaksh Singh Sibbia & ors. Vs St. of Punj.,
1980 (2) SCC 565 (Para 14)

5. Dataram Singh Vs St. of U.P. (2018) 3 SCC 22
(Para 15)

6. Sushila Aggarwal Vs State (NCT of Delhi),
2020 SCC Online SC 98 (Para 17)

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri I.B. Singh, learned
Senior Advocate assisted by Sri Amrendra
Singh, learned counsel for the applicant as
well as learned Anurag Singh, learned
counsel appearing on behalf of C.B.I.

2. Present application has been moved
by the applicant seeking anticipatory bail in
connection with Criminal Case No. 1426 of
2017 - C.B.I. Vs. Indrajeet Tiwari and
Others,
arising
out
of
RC
No.
0532014A0006, under Sections 120-B read
with Section 201, 204, 409, 420, 467, 468,
471, 477(A) I.P.C. and Sections 13(2) read
with Section 13(1)(c) & (d) of Prevention
of Corruption Act and Section 66 of the
Information
Technology
Act,
2000,
pending in the Court of the Special Judge,
CBI Court No. 6, Lucknow.

3. It has been submitted by learned
counsel for the applicant that according to
the first information report, the entire
records of the Head Post Office, Lalitpur,
were digitilized and the process of
digitilization was out sourced. This process
was carried out during the period 2013-14.
According to the first information report
the accused persons in consipracy with
each other installed Data Entry Module (a
kind of software to change the data in the
computer entries) in their respective system
in the Account Branch and other system
placed in the Head Post Office and Sri
Indra Jeet Tiwari and Sri Shailesh Khare
used the computer of Account Branch to
modify the deposit amount in the data entry
module in the Post Office computer record.
Thereafter, they use to send someone at the
counter
to
withdraw
the
money
so
deposited in fake accounts. At the counter,
Vinod Kumar Chaudhary, Postal Assistant
used
to
facilitate
them
in
taking
withdrawals of huge amount. In order to
facilitate in these fraudulent withdrawals,
they used to take witness of above
mentioned National Savings Agents on the
withdrawal vouchers which is prohibited as
per rules. On the basis of fake witness done
by National Savings Agents Anil Kumar
Jain S/o Sri Suresh Chandra Jain, National
Saving Agent No. 79 R/o 24, Saraipura
Lalitpur and Manoj Singhai S/o Sri
Mahendra Singhai, National Saving Agent
No. 100 R/P 275, Katra Bazar Lalitpur,
huge
amount
of
money
was
misappropriated by them, which caused a
wrongful loss to Government Exchequer
and a wrongful gain to themselves.

4. It has also been submitted that in
the first information report the applicant
was not named, and it is only during the
course of investigation his name came up
and was included in the charge sheet. It is
next submitted by learned Senior Advocate
that the applicant retired from service on
30.06.2016 and had duly participated in the
investigation and his statement under
Section 161 Cr.P.C. was also recorded. It is
submitted that the charge sheet was filed
subsequent to his retirement on 30.06.2017
against ten persons including the applicant.

5. In support of the present
application it has been submitted that
during
the
process
of
digitilization
passwords were given to the Agency for the
purpose of digitilization and during the said
process they had misused the said IDs and
866 INDIAN LAW REPORTS ALLAHABAD SERIES
passwords and therefore, the applicant
cannot be blamed for the misdeeds of the
Agency. It has been further submitted that
the applicant has fully participated in the
investigation and he has now attained age
of 65 years. It is also stated that the matter
relates to the year 2013-14 and the charge
sheet was filed nearly after four years of his
retirement and after about 7 years from the
incident, and now the applicant is being
sought to be apprehended.

6. Learned counsel for the applicant
further submits that all the other co-accused
have been enlarged on bail and therefore
there is good chance of the applicant being
also enlarged on bail. The applicant had
moved an application for discharge, on the
ground that prior sanction for prosecution
under Section 195 Cr.P.C. had not been
obtained, and therefore the Trial Court
cannot proceed against the applicant. The
said application for discharge preferred by
the applicant was rejected, against which
the applicant moved an application u/s 482
Cr.P.C. before this Court which is pending
consideration. Sri I.B. Singh, Senior
Advocate has submitted that in the light of
the judgment of Hon'ble Supreme Court in
the case of N.K. Ganguli Vs. C.B.I.,
(2016) 2 SCC 143, prior sanction was
mandatory, and in absence of the same no
cognizance could be taken and therefore
the trial of the applicant is illegal and
arbitrary.

7. Sri Anurag Singh, learned
counsel appearing on behalf of C.B.I. has
opposed the prayer for anticipatory bail.
He has submitted that in the charge sheet,
the role of the applicant has been clearly
brought forth, wherein it is stated that the
applicant alongwith other persons had
unauthorizedly deleted certain accounts
with malafide intention. He also submits
that due to non appearance of the
applicant non bailable warrant has been
issued by the Trial Court and proceedings
under Section 83/83 Cr.P.C. have also
been initiated against the applicant.

8. Heard learned counsel for the
parties and perused the record.

9. From the facts as they emerge in
the application as well as counter
affidavit, it is evident that the incident
relates to the year 2013-14, when the
process of digitilization was carried out at
the Head Post Office, Lalitpur where the
applicant
was
posted.
Initially
the
applicant was not named in the FIR and
during
investigation
he
had
fully
cooperated and participated and his
statement under Section 161 Cr.P.C. was
also recorded. The applicant subsequently
retired in the year 2016 and is presently
aged about 65 years. It is also noticed
that all the other co-accused have been
granted bail and applicant is wanted by
the trial Court for participating in the trial
as an accused.

10. In considering as to whether the
applicant
is
entitled
for
grant
of
anticipatory bail, this Court must take
into account and weigh the relevant
considerations with the facts of the case.
The relevant considerations for grant of
anticipatory
bail
have
been
duly
considered by the Hon'ble Supreme Court
in the case of Siddharam Satlingappa
Mhetre v. State of Maharashtra, (2011)
1 SCC 694 which reads as under:

"112. 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
2 All. Sukumar Jain (Anticipatory Bail) Vs. U.O.I.
867
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
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 the
accused is implicated with the help of
Sections 34 and 149 of the 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 the normal course of events,
the accused is entitled to an order of bail."

11. I have also considered the
judgments of the Hon'ble Supreme Court in
the case of Lavesh Vs. State (NCT of
Delhi), (2012) 8 SCC 730, wherein the
Apex Court has stated that normally a
person who has been declared as an
absconder/proclaimed
offender
is
not
entitled to be granted ancitipatory bail. The
aforesaid
judgment
has
used
words
"normally", meaning thereby the Court
itself was aware that there are certain other
factors which may be duly considered by
the Courts in exercising discretionary
power for grant of bail, including cases
where process under Section 82 Cr.P.C. has
been initiated. It is also noticed that the
Apex Court in the aforesaid case has also
stated that the order under Section 82
Cr.P.C. should have been passed during the
stage of investigation.

12. Learned counsel appearing for the
C.B.I. has clearly stated that investigation
is over and charge sheet has been filed and
the
applicant
is
not
required
for
participating in the investigation and is
only required to participate in the trial.

13. In the aforesaid circumstances,
this Court is of the view that merely
because proceedings under Section 82
Cr.P.C. have been initiated, anticipatory
bail cannot be denied to the applicant on
this ground alone.

14. In Gurbaksh Singh Sibbia and
Others Vs. State of Punjab, 1980 (2) SCC
565 (Para 30), a Constitutional Bench of
868 INDIAN LAW REPORTS ALLAHABAD SERIES
the Hon'ble Apex Court has held that the
bail decision is made after considering
variety of circumstances justifying the
grant or refusal of bail. Applying the ratio
of the above decision, I am of the
considered opinion that in case proceedings
u/s 82 Cr.P.C. have been initiated,
declaring the applicant a proclaimed
offender, then it would be a relevant fact,
while considering the application for
anticipatory bail, but it is not necessary that
the anticipatory bail application ought to be
rejected only on the ground that a person
has been declared absconder/proclaimed
offender. Even otherwise learned counsel
for the respondent could not point out any
bar provided in Section 82 or 435 Cr.P.C.
where a person could be disentitled for
anticipatory bail where proceedings under
Section 82 Cr.P.C. have commenced.

15. While considering the application
for anticipatory bail it is also relevant to
consider the stage at which it is sought, as
held by the Hon'ble Supreme Court in the
case of Dataram Singh Vs. State of Uttar
Pradesh, (2018) 3 SCC 22, wherein the
Court in para 3 and 16 has held as under :

"3. While so introspecting, among
the factors that need to be considered is
whether the accused was arrested during
investigations when that person perhaps
has the best opportunity to tamper with the
evidence or influence witnesses. If the
investigating officer does not find it
necessary to arrest an accused person
during investigations, a strong case should
be made out for placing that person in
judicial custody after a charge-sheet is
filed. Similarly, it is important to ascertain
whether the accused was participating in
the investigations to the satisfaction of the
investigating
officer
and
was
not
absconding
or
not
appearing
when
required by the investigating officer.
Surely, if an accused is not hiding from the
investigating officer or is hiding due to
some genuine and expressed fear of being
victimised, it would be a factor that a judge
would need to consider in an appropriate
case. It is also necessary for the judge to
consider whether the accused is a first-time
offender or has been accused of other
offences and if so, the nature of such
offences and his or her general conduct.
The poverty or the deemed indigent status
of an accused is also an extremely
important factor and even Parliament has
taken notice of it by incorporating an
Explanation to Section 436 of the Code of
Criminal Procedure, 1973. An equally soft
approach to incarceration has been taken
by the Parliament by inserting Section 436A in the Code of Criminal Procedure,
1973."

"16. In our opinion, it is not
necessary to go into the correctness or
otherwise of the allegations made against
the appellant. This is a matter that will, of
course, be dealt with by the trial Judge.
However, what is important, as far as we
are concerned, is that during the entire
period of investigations which appear to
have been spread over seven months, the
appellant
was
not
arrested
by
the
investigating
officer.
Even
when
the
appellant apprehended that he might be
arrested after the charge-sheet was filed
against him, he was not arrested for a
considerable period of time. When he
approached the Allahabad High Court for
quashing the FIR lodged against him, he
was granted two months' time to appear
before the trial Judge. All these facts are an
indication that there was no apprehension
that the appellant would abscond or would
hamper the trial in any manner. That being
the case, the trial Judge, as well as the
High Court ought to have judiciously
2 All. Sukumar Jain (Anticipatory Bail) Vs. U.O.I.
869
exercised discretion and granted bail to the
appellant. It is nobody's case that the
appellant is a shady character and there is
nothing on record to indicate that the
appellant had earlier been involved in any
unacceptable activity, let alone any alleged
illegal activity."

16. Considering the entire set of
facts as narrated above, specially that the
applicant is a retired Government servant,
aged about 65 years, he had participated
in the investigation, there are no chances
of his fleeing from justice and also that
he has assailed his prosecution before the
High Court in proceedings under Section
482 Cr.P.C. on the ground of want of
sanction, are certain facts which have
pursuaded this Court to favourably
consider the present anticipatory bail
application filed by the applicant.

17. Hence without expressing any
opinion on the merits of the case and
considering the nature of accusations and
antecedents of applicant, the applicant
may 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.

18. The Court has considered the
rival submissions and looking into the
circumstances as well as annexures which
have been annexed with the application
for anticipatory bail as well as counter
and rejoinder affidavits, this Court finds
it a fit case to allow the present
anticipatory bail application.

19. The anticipatory bail application
is allowed.

20. This Court directs that in the event
of arrest, the accused-applicant Sukumar
Jain involved in Criminal Case No. 1426
of 2017 - C.B.I. Vs. Indrajeet Tiwari and
Others,
arising
out
of
RC
No.
0532014A0006, under Sections 120-B read
with Section 201, 204, 409, 420, 467, 468,
471, 477(A) I.P.C. and Sections 13(2) read
with Section 13(1)(c) & (d) of Prevention
of Corruption Act and Section 66 of the
Information Technology Act, 2000, shall be
released forthwith on bail on furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the
Arresting
officer/Investigating
Officer/
S.H.O.
concerned
on
the
following
conditions:-

(i) That the accused-applicant
shall
make
himself
available
for
interrogation by police authorities as and
when required and will cooperate with the
investigation;

(ii). That the accused-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;
and

(iii). That the accused-applicant
shall not leave India without the previous
permission of the Court.

21. The papers regarding bail
submitted to the police officer on behalf of
the accused/applicant shall form part of the
case diary and would be submitted to the
court concerned along with same at the
time of submission of report under Section
173(2) Cr.P.C.
870 INDIAN LAW REPORTS ALLAHABAD SERIES

22. In case there is breach of any of
the above conditions or in case it is
otherwise found for any other reason the
bail is required to be cancelled, it shall be
open for the State or the appropriate
authority
to
move
application
for
cancellation of bail in accordance with law.
----------
(2021)02ILR A870
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.02.2021

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Bail No. 10281 of 2020

Dheeraj Singh ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Meenakshi Singh Parihar, Bipin Kumar
Singh, Prashant Kumar Singh

Counsel for the Opposite Party:
G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure - under 439 -Application for
Bail - Narcotic Drugs and Psychotropic
Substances Act, 1985- Section 37 - In case
of bail under the provisions of N.D.P.S. Act
where quantity of contraband is more than the
commercial quantity prescribed under the
Statute, reference to S. 37 of the N.D.P.S. Act
has to be taken into consideration and the level
of satisfaction as prescribed under section
37(1)(b) of the Act is required to be recorded. If
the Court granting bail has not taken into
consideration the provisions of section 37 of the
N.D.P.S. Act and, recorded the level of
satisfaction as mandated under section 37 of
the N.D.P.S. Act, the order granting bail to such
an accused would not be sustainable. (Para 15)

Therefore,
unless
two
conditions
i.e.
(i)
satisfaction of the Court that there are
reasonable grounds for believing that the
accused is not guilty and (ii) he is not likely to
commit any offence while on bail, are satisfied,
the accused cannot be released on bail as this is
the bar which operates while considering the
bail application under the provisions of the
N.D.P.S. Act if the quantity of contraband
recovered is above the commercial quantity.
(Para 14)

In the present case, the Court does not find any
reasonable ground to believe that the accusedapplicant prima facie has not committed the
offence and, would not commit any offence in
future while on bail inasmuch as he has criminal
history of identical cases. Since, in the present
case bar prescribed under section 37(1)(b) of
the N.D.P.S. Act is not crossed, this Court does
not find any ground to enlarge the accusedapplicant on bail. (Para 16)

B.
Narcotic
Drugs
and
Psychotropic
Substances Act, 1985: Section 50 - There is
no denial from the accused-applicant that the
car in question does not belong to him or a
large quantity of the contraband was not
recovered from two vehicles. Recovery of
contraband from two vehicles was made in the
presence of Gazetted Officer and, there has
been no violation of section 50 of the N.D.P.S.
Act. The accused-applicant has criminal history
of identical cases and while he was on bail, he
has allegedly committed the present offence.
(Para 12)

Bail application rejected. (E-3)

Precedent followed:

1. U.O.I. Vs Shiv Shankar Kesari, (2007) 7 SCC
798 (Para 8)

2. Satpal Singh Vs St. of Punj., (2018) 13 SCC
813 (Para 15)

Present application u/s 439 Cr.P.C. has
been filed seeking bail in FIR No. 0337 of
2020 u/s 8/20 of the NDPS Act, 1985,
Police Station Antoo, District Pratapgarh.

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)