Allahabad High Court
Shiv Bachan And Others vs State Of U.P. Thru. Prin. Secy. ... on 2 August, 2022
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 14
Case :- APPLICATION U/S 482 No. - 5102 of 2022
Applicant :- Shiv Bachan And Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home U.P. Civil Sectt. Lko. And Another
Counsel for Applicant :- Firoz Ahmad Khan
Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Firoz Ahmad Khan, learned counsel for the applicants, Shri Manoj Singh, learned A.G.A. for the State and perused the material on record. Notice to opposite party No. 2 is dispensed with.
The present application under Section 482, Cr.P.C. has been filed by the applicants to quash the order dated 14.7.2022 passed by Special Judge, SC/ST Act, Faizabad in Second Bail Application No. 411 of 2022 (Shiv Bachan and others Vs. State of U.P.) arising out of Case Crime No. 195 of 2021, under Section 147, 148, 308, 323, 324, 504, 506, 452, Indian Penal Code, Police Station Mahrajganj, District Faizabad by which the bail application of the applicants has been rejected after observing that the applicants are not in judicial custody.
Learned counsel for the applicants submits that the applicants have filed an application under Section 482, Cr.P.C., 1973 bearing No. 5168 of 2021 (Shiv Bachan and others Vs. State of U.P. and another) before this Court, which was disposed of by a Coordinate Bench of this Court vide order dated 9.12.2021 with a direction to the court concerned that if bail applications of the applicants is filed, the same shall be decided in the light in view of the law laid down by the Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2021) 10 SCC 773. It is further submitted that in compliance of the aforesaid order dated 9.12.2021, the applicants have filed bail application before the court concerned. The learned court below has rejected the bail application of the applicants without considering the law laid down by the Apex Court in Satender Kumar Antil (supra).
Learned counsel for the applicants further submitted that all the alleged offences under Sections 147, 148, 308, 323, 324, 504, 506, 452, Indian Penal Code are punishable below seven years imprisonment. It is further submitted that the applicants have not been arrested during the course of investigation and charge has not been framed against them.
It is further submitted that various directions have been issued by the Apex Court in Siddharth Vs. The State of Uttar Pradesh & Another, 2022 (11) SCC 676 and Aman Preet Singh Vs. C.B.I. through Director, 2021 SCC Online SC 941 with regard to the disposal of the bail applications and other related matters where the applicants have not been arrested during the course of investigation.
It is not in dispute that the applicants were not arrested during the investigation and they have also cooperated with the investigation, therefore, bail application of such applicants on appearance have to be decided when the accused being taken into physical custody as has been observed by the Apex Court in Satender Kumar Antil's case. The relevant portion of the judgment is extracted as below:-
"Category A.....
a)..
b)...
c)...
d)....
e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided."
It is further submitted that various guidelines have also been issued as per the law laid down by the Apex Court in the case of Siddharth Vs. The State of Uttar Pradesh & Another, 2022 (11) SCC 676. The word "custody" has also been defined in the aforesaid judgment, which is reproduced as under:-
"15. Word "custody" appearing in this Section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the Investigating Officer before the Court at the time of filing of the chargesheet whereafter the role of the Court starts. Had it not been so the Investigating Officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court."
In view of the above facts and circumstances and keeping in mind the observations/directions made by the Apex Court in Satender Kumar Antil (supra) and Siddharth (supra), I am of the view that until the Investigating Officer does not believe that the applicants will abscond or disobey the summons, the bail application of the applicants could not have been rejected on the sole ground that they were not in physical custody, as required under Section 439(1), Cr.P.C. Thus, the impugned order is liable to be set aside.
In view of the above facts and circumstances and the law laid down by the Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2021) 10 SCC 773, Siddharth Vs. The State of Uttar Pradesh & Another, 2022 (11) SCC 676 and Aman Preet Singh Vs. C.B.I. through Director, 2021 SCC Online SC 941, the instant petition is allowed. The impugned judgment dated 14.7.2022 passed by Special Judge, SC/ST Act, Faizabad is set aside. Matter is remanded back to the trial court with a direction to consider and decide the bail application of the applicants in the light of the observations/directions/guidelines issued by the Apex Court in Satender Kumar Antil (supra), Siddharth (supra) and Aman Preet Singh (supra). The applicants shall appear before the trial court within 15 days from today along with certified copy of this order.
Order Date :- 2.8.2022
T. Sinha
