Disha Pal And 3 Others vs State Of U.P.
2021 Latest Caselaw 3008 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						Reserved on 18.02.2021  
 
						Delivered on  25.02.2021
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3497 of 2021
 

 
Applicant :- Disha Pal And 3 Others
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Paritosh Sukla,Prabha Shanker Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Siddharth,J.

Heard Sri Prabha Shanker Mishra and Sri Paritosh Shukla, learned counsels for the applicants; Sri Saumitra Dwivedi, learned counsel for the informant and learned A.G.A for the State.

Order on Criminal Misc. Exemption Application

This exemption application is allowed.

Order on Criminal Misc. Anticipatory Bail Application

The instant Anticipatory Bail Application has been filed with a prayer to grant an anticipatory bail to the applicants, namely, Disha Pal, Ram Babu, Naman Pal and Shivam Mishra, in Case Crime No.- 1721 of 2020, under Sections- 506, 120-B, 406, 420, 467, 468, 471 IPC, Police Station- Indrapuram, District- Ghaziabad.

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 in the FIR that informant is resident of Ghaziabad and is working at Gurgaon. The applicant No.1 is known to the informant through his aunt (Mausi), where he met her and other applicants also met him at his aunt's place. Applicant No.1 informed him that he is owner of a Company at Kanpur and applicant Nos. 2, 3 and 4 are his partners. The company is involved in the business of investment and hence the informant was convinced and he invested Rs.1, 08,00000/- in the company of the applicants, after transferring the money from his bank accounts. The details of the accounts, from which the money was transferred, are mentioned in the FIR. It is alleged that the applicant No.1 has not returned the aforesaid amount taken from the informant. There is also allegation in the FIR that applicant No.1 has opened Demat Account in the name of the informant and his wife, Sargam Mishra, by using forged documents.

Learned counsel for the applicants has submitted that allegations made in the FIR are not correct. There is no date and time mentioned when the amount of Rs.1,08,00000/- was transferred in the account of applicant No.1 by the informant.

It has further been submitted that applicant No.1 has lodged the FIR against the brother and sister (cousin) of the informant on 8.9.2020. The informant has lodged two FIRs against the applicants on 17.6.2020 and 22.2.2020. The informant has also committed fraud with one, Nirbhay Tiwari, and FIR dated 12.7.2020 has been lodged in this regard. The informant has defrauded one, Shalin Gupta, of Rs.6,50,000/- and FIR dated 18.3.2020 is lodged against him at Police Station Prayagraj. The investigation is continuing with regard to the present FIR and also other FIRs.

Learned counsel for the informant has vehemently opposed the prayer for anticipatory bail of the applicants and has submitted that applicants have been implicated on the basis of correct allegations. Their custodial interrogations are required since they are in possession of the forged documents and without their arrest documents cannot be recovered. He has relied upon the judgment in the case of Maruti Nivrutti Navale Vs. State of Maharastra and Another, (Arising out of SLP (Crl.) No. 7337 of 2011, 2012 0 Supreme (SC) 599. He has further submitted that as per paragraph No. 122 of the judgment of the Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharastra and Others, Criminal Appeal No. 2271 of 2010 (Arising out of SLP (Crl.) No. 7615 of 2009), 2010 (8) Supreme 353, the role of the applicants should be clearly evaluated. The allegations against applicant No.1 are serious in nature and other applicants have colluded with him.

Learned AGA has opposed the prayer for anticipatory bail of the applicants. He has submitted that in view of the seriousness of the allegations made against the applicants, they are not entitled to grant of anticipatory bail. The apprehension of the applicants 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 main allegations have been levelled against the applicant No.1, Disha Pal. The other applicants are alleged to be her companions. In view of the above, anticipatory bail on behalf of the applicant No.1 is rejected.

There is a case registered/about to be registered against the applicants. It cannot be definitely said when the police may apprehend them. 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 of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349 the 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.

Regarding applicant No.1, Disha Pal :-

Having heard learned counsel for the parties and upon perusal of material brought on record as well as complicity of accused and also judgement of the Apex Court in the case of P. Chidambaram Vs. Directorate of Enforcement, AIR 2019 SC 4198, this Court does not finds any exceptional ground to exercise its discretionary jurisdiction under Section 438 Cr.P.C.

However, in view of the entirety of facts and circumstances of the case, it is directed, on the request of counsel for the applicants, that in case the applicant No.1 appears and surrenders before the court below within 90 days from today and applies for bail, her prayer for bail shall be considered and decided as per the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

Till then no coercive action shall be taken against the applicant No.1.

However, in case, the applicant No.1 does not appears before the court below within the aforesaid period, coercive action shall be taken against her.

It is made clear that the applicant will not be granted any further time by this court for surrendering before the court below as directed above.

With the aforesaid directions, this application is finally disposed of on behalf of applicant No.1.

Regarding applicant Nos, 2, 3 and 4, Ram Babu, Naman Pal and Shivam Mishra:-

Without expressing any opinion on the merits of the case and considering the nature of accusation and their antecedents, the applicant Nos, 2, 3 and 4 are entitled to be released on anticipatory bail for limited period in this case considering the exceptions considered by the Hon'ble Supreme Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

In the event of arrest, the applicant Nos, 2, 3 and 4 shall be released on anticipatory bail till cognizance is taken by the court on police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court with the following conditions:-

(i) The applicant Nos, 2, 3 and 4 shall make themselves available for interrogation by the police officer as and when required;

(ii) The applicant Nos, 2, 3 and 4 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 from disclosing such facts to the Court or to any police officer;

(iii) The applicant Nos, 2, 3 and 4 shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. concerned.

(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(v) 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.

In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant Nos, 2, 3 and 4.

The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicant Nos, 2, 3 and 4.

The applicant Nos, 2, 3 and 4 are directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress who shall ensure the compliance of present order.

The application on behalf of applicant Nos.2, 3 and 4 also stands finally disposed of.

Order Date :- 25.02.2021

Ruchi Agrahari