State vs Naveen Chander Upadhyaya

Manmohan, J.—Present petition has been filed by the State for cancellation of anticipatory bail granted to respondent/accused by learned Additional Sessions Judge-02 (for short ''ASJ''), Dwarka, New Delhi vide order dated 21st May, 2011 in FIR Nos. 160/2011,166/2011, 167/2011 and 168/2011 registered with PS IGI Airport under Sections 419/ 420/ 468/ 471 IPC and Section 12 of Passports Act. Mr. Pawan Sharma, learned standing counsel for the State submits that without any change of circumstances learned ASJ has granted anticipatory bail to respondent-accused within sixteen days of his earlier order dated 4th May, 2011 refusing anticipatory bail. He further submits that as learned ASJ. had himself vide his earlier order dated 4th May, 2011 transferred the investigation to Special Cell, Rohini, he did not have jurisdiction to decide the second anticipatory bail application.

On the other hand, Mr. Ravi Nayak, learned counsel for respondent states that learned ASJ has granted anticipatory bail vide order dated 21st May, 2011 because after dismissal of his first anticipatory bail application, respondent-accused had offered to surrender but the Investigating Officer had not arrested him. He also states that till date there is no incriminating material on record which warrants respondent-accused''s custodial investigation.

In rejoinder, Mr. Pawan Sharma has handed over certified copies of the proceedings before learned ACMM on respondent-accused''s application seeking permission to surrender in Court.

Having heard the parties and having perused the two orders dated 4th May, 2011 and 21st May, 2011 passed by learned ASJ, this Court is of the view that there was no change of circumstances warranting grant of anticipatory bail to the respondent/accused on 21st May, 2011. This Court is also of the view that had the learned ASJ perused the proceedings before learned ACMM on the surrender application of the respondent/ accused, it would have been apparent to him that in fact, respondent/accused had never surrendered before the Court.

While on the first date of hearing before learned ACMM, Dwarka Courts, New Delhi, i.e., on 6th May, 2011, respondent/ accused was not present, on 9th May, 2011 the matter had only been transferred to learned CMM, Tis Hazari Courts, Delhi and thereafter on the next date of hearing, i.e., 14th May, 2011 respondent/accused had simply withdrawn his surrender application.

From the aforesaid, it is apparent that the respondent-accused had failed to join the investigation and had, in fact, never surrendered before the trial court.

Moreover, in the opinion of this Court, the allegations in the first FIR are very serious and need to be investigated thoroughly. It is pertinent to mention that that investigation in the present batch of FIRs was started by the Delhi Police only when a lady passenger was deported to India from Brussels as she was found travelling on forged documents. Keeping in view the aforesaid, the impugned order dated 21st May, 2011 passed by learned ASJ is quashed and set aside. Accordingly, present petition stands allowed.