The recent observation made by the Allahabad High Court states that an accused's anticipatory bail application cannot be dismissed solely based on the fact that a charge sheet has been filed in the case or that the court has taken cognizance of the offense.
The bench of Justice Nalin Kumar Srivastav emphasized that anticipatory bail can be granted as long as the applicant has not been arrested. They further stated that even if a chargesheet has been filed and the court has taken cognizance of the offense, the accused can still seek anticipatory bail if they have obtained immunity from arrest through a court order or a notice served by the Investigating Officer under Section 41-A Cr.P.C.
Brief Facts:
It is alleged in the F.I.R. that the informant Dr. Pallavi Sharma was married to applicant no.1 Dr. Kartikeya Sharma on 27.11.2015 and since after the marriage, the informant was being subjected to cruelty and harassment on account of demand of Rs.2 Crore as additional dowry and she was being mentally and physically exploited by her in-laws. Her father-in-law also used criminal force to her with intent to outrage her modesty. Accused applicant no.1 is the husband, applicant no.2 is the father-in-law and applicant no.3 is the mother-in-law of the informant / opposite party no.2. F.I.R. was lodged on 28.12.2021 and investigation started.
Contentions of the Applicant:
Learned counsel for the applicants submitted that all three accused are highly educated individuals and professionals in the medical field. They strongly denied ever making any dowry demands, as claimed, and asserted that the second party involved was never subjected to any form of cruelty or harassment by them.
Contentions of the Respondent:
The learned Counsel for the Respondent submitted that after filing of the charge-sheet, several processes were issued against the accused applicants, but they deliberately avoided the service of the processes sent by the Court of Magistrate and subsequently, on 18.4.2022, the court of Magistrate at Aligarh passed an order to issue process under Section 82 Cr.P.C. against the accused applicants. It was further submitted that since the applicants are not obeying the orders passed by the court and they are in the category of proclaimed offenders, they are not entitled for any relief in the form of anticipatory bail. Reliance has been placed on the decision of the Hon'ble Supreme Court in Prem Shankar Prasad Versus State of Bihar and Another, 2021 SCC OnLine SC 955.
Observations of the Court:
The Court acknowledged that the applicants had not been declared as proclaimed offenders when they applied for anticipatory bail before the High Court. Therefore, the restriction imposed by the Supreme Court in the case of Prem Shankar Prasad (mentioned above) regarding the rejection of anticipatory bail applications for proclaimed offenders does not apply in the current situation. The Court also took into account that the alleged offenses carry a maximum imprisonment term of seven years and observed that the applicants had been cooperative throughout the investigation, with no evidence to suggest otherwise. Consequently, the Court deemed it appropriate to grant them pre-arrest bail.
However, before concluding the case, the Court expressed astonishment at the sessions court's decision to deny anticipatory bail to the accused applicants based on the filing of the chargesheet and the court's acknowledgment of it. In light of this, the Court deemed it necessary to remind the Sessions Courts about the true extent of Section 438 of the Criminal Procedure Code (CrPC) and the powers vested in them, referencing the Supreme Court's ruling in the case of Sushila Aggarwal and others vs. State (NCT of Delhi) and another (2020) 5 SCC 1. Finally, the Court held that the observation made by the Sessions Court when rejecting the applicants' anticipatory bail application was incorrect and that the established legal position should not be allowed to be distorted in any way.
The decision of the Court:
The Allahabad High Court allowed the present bail application by considering the settled principles of law.
Case Title: Smt. Shanti Rani Agarwal vs State of UP and another
Coram: Hon’ble Justice Nalin Kumar Srivastava
Case no.: CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3107 of 2023
Advocate for the Applicant: Surya Bhan Singh
Advocate for the Respondent: - G.A.,Ajay Kumar Shukla
Read Judgment @LatestLaws.com
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