The Lucknow bench of the Allahabad High Court on Friday rejected the anticipatory bail application of Samajwadi Party MP Mohd Azam Khan in connection with the appointment of 1,300 engineers, clerks, and stenographers at Uttar Pradesh Jal Nigam during his tenure as a cabinet minister during the SP Government’s rule in Uttar Pradesh. Justice Rajeev Singh passed this order while hearing a Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C filed by Azam Khan.
The application for anticipatory bail under Section 438 CrPC has been filed on behalf of the applicant with the prayer to enlarge him on anticipatory bail in the event of his arrest/being taken into judicial custody in connection with the FIR under Sections 409, 420, 120-B, 201 IPC and Section 13(1)(d) PC Act, Police Station SIT, District Lucknow.
Additional Government Advocate has raised preliminary objection with regard to the maintainability of the bail application under Section 438 CrPC on the ground that as per the report of District Superintendent of Police, Rampur dated November 12, 2020 the applicant is already detained in District Jail, Sitapur in relation to criminal cases under various provisions IPC and Section 3 of Prevention of Damage to Public Property Act.
B-warrant has been issued by the competent court on April 18, 2020, against the applicant which was duly served on the applicant on November 19, 2020, by the jail authorities of District Jail, Sitapur.
AGA submitted that the applicant has himself admitted that B-warrant has been issued against him by the competent Court.Additional Government Advocate said that the B-warrant issued against the applicant has been received by the Jail Authorities of District Jail, Sitapur and has been duly communicated to the applicant also, meaning thereby, the applicant is in custody in the present case. It has, thus, been submitted that the anticipatory bail application is not maintainable and at the most, the applicant may move an application under Section 439 Cr.P.C.
Counsel for the applicant, while opposing the preliminary objection, has submitted that merely service of B-warrant does not mean that the applicant has been taken into custody in the case and therefore, the bail application is maintainable.Counsel for the applicant further submitted that even if the argument of A.G.A. is accepted to the effect that B‐warrant has been received by the Jail Authorities of District Jail, Sitapur and has been communicated to the applicant, and moreover, if it is deemed that the applicant is in custody of the State in the present case since November 19, 2020 then the applicant is entitled for default bail for the reason that the charge sheet dated May 24, 2021 was not filed within 90 days from November 19, 2020.
The Court noted: “It is admitted fact that the F.I.R. was lodged on April 25, 2018, on the basis of preliminary inquiry conducted by the Special Investigating Team UP, Lucknow for the offenses of giving indefinitely unjust enrichment to some persons, forgery causing disappearance of evidence of the offense, and destroying the documents to prevent its production as evidence with a criminal conspiracy in appointing of 1300 persons on the post of Assistant Engineer, Junior Engineer, Clerk, and Stenographer”
The Court held that, the applicant is deemed to be in custody in relation to the F.I.R. after service of the B-warrant issued by the competent court under the provisions of Section 267(1) Cr.P.C. Accordingly, the anticipatory bail application under Section 438 Cr.P.C. is not maintainable and is hereby rejected, the Court ordered.
“The prayer of the Counsel for the applicant for default bail in the present proceedings also cannot be considered, and in this regard, the applicant may move an appropriate application before the appropriate court, if he so chooses”, the Court said.
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