Allahabad High Court
Smt. Brijesh Kumari @ Brijesh vs State Of U.P. on 19 February, 2021
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 73
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1610 of 2021
Applicant :- Smt. Brijesh Kumari @ Brijesh
Opposite Party :- State of U.P.
Counsel for Applicant :- Amit Daga
Counsel for Opposite Party :- G.A.,Avinash Pandey
Hon'ble Siddharth,J.
Heard Shri Rahul Sripat, learned Senior Counsel assisted by Shri Amit Daga learned counsel for the applicant; Shri Avinash Pandey, learned counsel for the informant and learned AGA.
The instant anticipatory bail application has been filed on behalf of the applicant, Smt. Brijesh Kumari @ Brijesh, with a prayer to release her on bail in Case Crime No. 64 of 2020, under Section 420 I.P.C., Police Station- Amroha Dehat, District- Amroha (Jyotiba Phule Nagar), during pendency of trial.
Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
There is allegation against the applicant that she has sold the property charged with bank as collateral security of the loan taken by her son in the year 1996 to the informant in the year 2003 . Informant had come to known about the alleged mortgage on 6.2.2013 and First Information Report was lodged after about seven years of coming to know of the aforesaid charge over property .Learned Senior counsel for the applicant has submitted that applicant had 1/3 share in the undivided property which was mortgaged to the bank by the company of the son of the applicant. It is further submitted that bank proceeded with recovery of loan. The property was auctioned but auction purchaser could not get possession of the property as the same was not demarcated. No prejudice has been caused for rights and title to the informant .Applicant is aged about 81 years and she is almost blind and hard of hearing. She is not able to move and do her routine work.Sending her to jail at this stage of her life would not be justified.
Learned Senior Counsel has relied upon the judgment of Apex Court in Sunedh Singh Saini Vs. State of Punjab and another,passed in Criminal Appeal No.827 of 2020,on 3.12.2020 ,wherein in paragraph-7 the Apex court has held that delayed initiation of criminal proceedings can be considered as ground for grant of anticipatory bail and sending the applicant to the jail would not be justified.
Learned counsel for the informant has vehemently opposed prayer of the applicant and has submitted that informant has been cheated by the applicant.He has denied most of averments made in the affidavit in support of bail application in the counter affidavit but could not deny the facts that applicant is blind and fairly aged.Applicant has definite apprehension of her arrest by the police.
Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear anticipatory bail cannot be granted.
After considering the rival submissions this court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case ofJoginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.
Hence in case of his arrest the applicant is directed to be enlarged on anticipatory bail without expressing any opinion on the merits of the case and considering the nature of accusations and his antecedents as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and order dated 22.05.2020 passed by this Court in Criminal Misc. Anticipatory Bail Application No.2609 of 2020. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
Let the applicant involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
1. The applicant shall not leave India during the pendency of trial without prior permission from the concerned trial Court.
2. The applicant shall surrender her passport, if any, to the concerned trial Court forthwith. Her passport will remain in custody of the concerned trial Court.
3. That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
4. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
5. In case, the applicant misuses the liberty of bail, the trial Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.
6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
8. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 19.2.2021
Atul kr. sri.
