Allahabad High Court says accused cannot apply under Section 88 CrPC after rejection of anticipatory bail plea

The Allahabad High Court while rejecting an application observed that if the accused has been summoned for a non-bailable offence and his anticipatory bail application has been rejected by the High Court, he cannot apply flor utilization of Section 88 CrPC.

A Single Bench of Justice Sanjay Kumar Singh passed this order while hearing an application under section 482 filed by Yadav Singh.

The application under Section 482 CrPC has been preferred by the applicant with the following prayer:-

(a) To quash/set aside the order dated 21.12.2023 passed by Special Judge, Anti Corruption, CBI, Ghaziabad, in Special Case No 05/2021 (CBI vs Yadav Singh and others) arising out of Supplementary Charge Sheet dated 06.10.2021 under Section 120-B r/w 420, 465 and 471 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988, P.S CBI/STF, New Delhi.

(b) To direct the court below to accept the Bail Bonds/ undertakings of the Applicant for his further appearance in Special Case No 05/2021 arising out of Supplementary Charge Sheet filed on 06.10.2021 in Case Registered dated 30.7.2015.

(c) The applicant may be permitted to renew / file fresh Bail Bonds in pursuance of the Supplementary Charge-Sheet filed on 06.10.2021.

The facts of the case are that on 13.01.2012, an FIR was registered against applicant Yadav Singh and others at Case under Sections 120B IPC r/w 409, 420, 466, 467, 469, 471 IPC and under Sections 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act, 1988 at Police Station Sector-39, NOIDA, Gautam Budh Nagar, U.P for the alleged corrupt practice while executing engineering work between 14.12.2011 and 23.12.2011 in which 1280 agreement bonds for Rs 954.38 crores were executed by the Engineering Department of NOIDA. After investigation, the State police submitted the closure report which was accepted by the District and Sessions Judge, Gautam Budh Nagar on 27.11.2014.

Thereafter, Lucknow Bench of the Court in Misc Bench passed an order dated 16.07.2015 directing the CBI to conduct investigation into all allegations of corruption and amassing of unaccounted money against the applicant Yadav Singh, the then Chief Engineer, Noida, Greater Noida and Yamuna Express Authorities and in regard to all transactions, persons and entities connected thereto.

In compliance of the above order dated 16.7.2015 of High Court, CBI registered a regular case on 30.07.2015 bearing F.I.R, against the applicant and unknown persons under Sections 120-B IPC r/w 409, 420, 466, 467, 469, 471 IPC and under Section 13 (2) r/w Sections 13 (1) (d) of Prevention of Corruption Act, 1988.

Pursuant to an order dated 16.07.2015 of the High Court, C.B.I is conducting a separate investigation with regard to each contract bonds. Earlier C.B.I had submitted three charge sheets regarding different contract bonds and disproportionate assets against the applicant.

The applicant was arrested by the CBI and he has moved three separate bail applications in the cases registered against him before the trial court on the basis of above mentioned charge-sheets arising out of F.I.R being Criminal Misc Bail Application before the High Court.

During pendency of the above mentioned application dated 11.05.2022 of the applicant before the Trial Court, the Criminal Misc Anticipatory Bail Application U/s 438 CrPC of the applicant was rejected vide order dated 30.09.2022 by the High Court, but the said order dated 30.09.2022 was filed by the applicant after one year and two months on 30.11.2023 before the Trial Court.

Thereafter, application dated 11.05.2022 of the applicant was rejected by the trial court vide order 21.12.2023, which is the subject matter of challenge in the application.

The Court observed that,

It is not in dispute that previous two charge sheets dated 15.03.2016 and 06 of 2017 dated 31.05.2017 filed by CBI against the applicant are with regard to different contract bonds respectively and separate case numbers being Special Case  have been allotted to the above charge sheets. The Trial Court took cognizance separately on each charge sheet and trials of those cases are also proceeding separately.

So far as impugned supplementary charge sheet dated 06.10.2021 of this case is concerned, the same is related to different contract bond, which is a separate issue relating to construction of Cricket Stadium with Pavilion Building at Integrated Sports Complex, Sector 21-A, Noida and has no concern with the earlier charge sheets filed against the applicant.

The supplementary charge sheet dated 06.10.2021 under Sections 120-B IPC r/w 420, 465, 471 IPC & Section 13(2) read with Section 13(1) (d) of the PC Act, 1988, has also been registered separately as Special Case, on which Trial Court took cognizance and summoned the applicant vide order dated 14.12.2021, which is a separate case / trial, in which the anticipatory bail application under Section 438 Cr.P.C of the applicant has already been rejected by the High Court vide order dated 30.09.2022 and thereafter no bail application under Section 439 Cr.P.C has yet been moved by the applicant.

The Court found that it is not a case of addition of new section 465 IPC in the previous two charge sheets dated 15.03.2016 and 06 of 2017 dated 31.05.2017.

Applicant is not on bail in the case arising out supplementary charge sheet dated 06.10.2021. Hence submission of the counsel for the applicant that he is already on bail in the case in all the Sections except under Section 465 IPC and he is not required to seek regular bail under Section 439 Cr.P.C in the case even after rejection of his anticipatory bail under Section 438 Cr.P.C in the case is a misleading argument and is not sustainable, hence same is liable to be rejected.

The Court said that it is well settled that every case turns on its own facts. Even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect of the case.

“In view of the above discussion, the Court is of the view that if the accused has been summoned for a non-bailable offence and his anticipatory bail application has been rejected by the High Court, he cannot apply for utilization of Section 88 CrPC. The accused has to apply for regular bail in accordance with law and the Court has to decide the bail application on merits. In other words it can be said that the cases, where provisions of Chapter XXXIII of Code of Criminal Procedure are applicable, would not be dealt with by the procedure provided under Section 88 CrPC. The considerations for granting bail are different and include several other aspects, which are not to be considered while applying Section 88 CrPC.

Therefore, a person accused of a bailable offence needs to be personally present before the Court and has to be ready to give bail before he has to be released on bail. But where a person is accused of non bailable offence, as and when he appears before the Court whether by arrest or detention or otherwise, he may be released on bail under Section 437 Cr.P.C or 439 Cr.P.C as the case may be subject to satisfaction of certain parameters settled for grant of bail. Here it is also relevant to mention that where there is overlapping power or provision, but one provision is specific while other is general, the law is well settled that specific and special provision shall prevail over the general provision in the matter of accused, Since the procedure with respect to bail and bonds, is provided under Chapter XXXIII of CrPC. In my view, under the facts of this case, Section 88 Cr.P.C. would not be attracted, hence submissions advanced on behalf of the applicant are not liable to be accepted.

In view of the above, the applicant is not entitled to the benefit of Section 88 CrPC.

As a fall out and consequence of above verbose discussion and principles of law laid down by the Apex Court as noted above, I do not find any illegality in the order dated 21.12.2023, which is wholly impeccable”, the Court further observed while rejecting the application.

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