DEVESH GOYAL Vs. STATE OF U.P.

JUDGEMENT

(1.) This application for grant of anticipatory bail under Section 438 of Code of Criminal Procedure, has been filed by Divesh Goyal, Sunil Mittal, Vishwajeet and Bhartesh Kumar Pathak, with a prayer for enlargement on bail to all applicants, in case of their arrest, in Case Crime No. 1185 of 2016, under Sections 406, 323, 504, 506 IPC, Police Station Kwarsi, District Aligarh.

(2.) Learned counsel for the applicants argued that Case Crime No. 1185 of 2016 was got registered at Police Station Kwarsi, District Aligarh, with a false contention for offences, punishable under Sections 406 323, 504, 506 IPC. Whereas, it was admitted that two flats were got allotted and their sale deeds were got executed on 13.1.2014 and 21.6.2014. Subsequently, Flat No. 502-A of Rama Sudha Apartment which was licensed to be taken in possession for limited period, was occupied by informant by taking an electric connection in his name and this was got removed and then after this false case was got registered. Side-by-side, a civil suit for a decree of injunction was also filed in competent Civil Court at Aligarh, wherein ad-interim relief was granted and this order was challenged before this Court in First Appeal From Order No. 3860 of 2018 (Shri Devesh Kumar Goyal and others versus Shri Harsh Mittal) and Court No. 58 of this Court, vide order dated 23.10.2018 had stayed ad-interim injunction granted in favour of the informant and the same is still pending. The ad-interim injunction is in operation and matter is sub-judice. In above malicious criminal prosecution, warrant has been issued. Hence, this application with above prayer.

(3.) Learned AGA as well as learned counsel for the informant has vehemently opposed this application with this contention that this application has been filed by hiding of facts. Charge-sheet was submitted in this very case crime number for offences punishable under Sections 406, 323, 504, 506 IPC and cognizance over it was taken. Subsequently, a proceeding under Section 482 of Cr.P.C. No. 26895 of 2017 was filed and this was with a prayer for quashing of entire proceeding including charge-sheet and this Court, vide order dated 13.9.2018, has rejected the same with a direction for making a surrender before trial court within two months from date, but this order was not complied with. Ultimately, a proclamation of proclaimed offender was made under Section 82 of Cr.P.C. Non-bailable warrants were issued against the applicants. Then after, this application for anticipatory bail has been filed. Meaning thereby, there was no apprehension of arrest of applicants by police. Rather, sufficient time was there. Earlier, applicants have taken recourse of this Court, but no indulgence was there except a direction for making surrender before Magistrate within two months and this order was not complied with, which ought to have been complied with by 13.11.2018. Again applicants neither appeared in trial court nor compliance of the Court order was made, resulting declaration of proclaimed offender and issuance of coercive process, under Section 82 of Cr.P.C., coupled with non bailable warrants. Hence, it is misuse of process of this Court.