Court No. - 75

Case :- CRIMINAL MISC ANTICIPATORY BAIL

APPLICATION U/S 438 CR.P.C. No. - 15393 of 2021

Applicant :- Jitendra Pal Singh

Opposite Party :- State of U.P.

Counsel for Applicant :- Sujeet Kumar Rai

Counsel for Opposite Party :- G.A.

Hon'ble Ram Krishna Gautam,J.

Heard over anticipatory bail application, under Section

438 Cr.P.C., moved by the applicant-Jitendra Pal Singh, in

Case Crime No. 91 of 2020, under Sections-409 and 420

I.P.C. Police Station-Tundla, District-Firozabad.

Learned counsel for the applicant argued that the accused-

applicant is innocent; he has been falsely implicated in this

very case crime number; learned counsel for the applicant

argued that as per order passed in identical circumstances,

by a coordinate Bench of this Court, filed at page no. 32 of

the paper book, the law of Apex Court cited in case of

State of Maharashtra vs. Laljit Rajshi Shah and others,

reported in AIR 2000 SC 937, a Secretary of the

Cooperative Society, is not a public servant and being not

a public servant he may not be an accused under Section

409 I.P.C.; there is every likelihood of arrest by the police;

hence anticipatory bail application was moved before

Sessions court concerned, but it was rejected, hence this

application for anticipatory bail with above prayer.

Learned AGA has vehemently opposed with this

contention that being Secretary of Sadhan Sahkari Samiti

Limited, Jalopura, Block-Firozabad, and an embezzlement

of Rs. 63,99,878 and 35 paise was held by the applicant;

thereafter, the aforesaid case crime number was got

registered and this embezzlement was detected by the

internal audit under Section 66 of the Cooperative

Societies Act; investigation is in process and by way of

anticipatory bail the same may be hampered.

Having heard and gone through material placed on record

and considering the order of grant of anticipatory bail, to

Brijesh Kumar Sharma in Criminal Misc. Anticipatory

Bail Application No. 6949 of 2020, it is apparent that

under Section 409 I.P.C., merely being a public servant is

not condition precedent for constituting an offence and

punishment under Section 409 I.P.C. rather, Section 409 of

I.P.C. provides for criminal breach of trust by public

servant or by banker, merchant or agent i.e. whoever

being in any manner entrusted with property, or with any

dominion over property in his capacity of a public servant

or in the way of his business as a banker, merchant, factor,

broker, attorney or agent, commits criminal breach of trust

in respect of that property, shall be punished with

imprisonment for life, or with imprisonment of either

description for a term which may extend to ten years, and

shall also be liable to fine hence condition precedent of

being public servant is not there, rather condition

precedent is of entrustment either to a public servant or to

banker, merchant, factor, broker, attorney or agent or to

any representative of any institution, and in the present

case there is embezzlement, by a Secretary of a

Cooperative society, is there, hence the offence under

Section 409 I.P.C. may not be said to be not being made

out in above case.

Considering all those facts and circumstances of the case

and law laid down by the Hon'ble Apex Court in the Case

of Sushila Aggarwal Vs. State (NCT of Delhi) 2020 SCC

Online SC 98, no indulgence for grant of anticipatory bail

is made out.

Accordingly, anticipatory bail application is rejected.

Order Date :- 8.12.2021

Deepak/