Abdul Rahim vs State Of U.P. Thru. Secy. Home Lko. ...
2022 Latest Caselaw 20937 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 
A.F.R.
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2087 of 2022
 
Applicant :- Abdul Rahim
 
Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And Another
 
Counsel for Applicant :- Dhananjai Kumar Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.

The instant application has been moved by the applicant- Abdul Rahim for grant of anticipatory bail in Case Crime No. 356 of 2022, under Section 419, 420, 406 I.P.C., Police Station Kotwali Nanpara, District Bahraich, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

Learned counsel for the accused-applicant while pressing the anticipatory bail application submits that it is a case of false implication and in fact nothing as shown in the F.I.R. has been recovered from the applicant and F.I.R. has been lodged on the basis of false, concocted and fabricated facts. It is further submitted that the applicant is not having any criminal history and the offences against the applicant are triable by magistrate. The applicant is a law abiding citizen and there is no apprehension that after being released on anticipatory bail he may flee from the course of law or may otherwise misuse the liberty. He undertakes that he will cooperate in the investigation and will remain present before the investigating officer as and when required. It is also submitted that the applicant shall not try to intimidate the prosecution witnesses.

Learned A.G.A. on the other hand, however, opposes the prayer of anticipatory bail of the applicant on the ground that the applicant is an accused of heinous offence and therefore, he is not entitled for any protection from arrest as also the charge sheet in this case has already been filed.

Having heard learned counsel for the parties, having perused the record, so far as the contention of learned A.G.A. pertaining to the fact that the charge sheet in this case has been submitted, it may be recalled that submission of charge sheet may not be treated as an impediment for consideration of the prayer of anticipatory bail application of the applicant. In this regard, Bharat Chaudhary and others Vs. State of Bihar, (2003) 8 SCC 77, Ravindra Saxena vs. State of Rajasthan (2010) 1 SCC 684 and Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and Ors., MANU/SC/0100/2020 may be referred;

In Siddharam Satlingappa Mhetre Vs State of Maharashtra and Ors., MANU/SC/1021/2010, Hon'ble Supreme Court has laid down parameters for consideration of anticipatory bail prayer of an applicant in the following words:-

"1. ........... The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.

122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.

124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.

125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.

126. Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar's case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.

127. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

The Apex Court in the Constitution Bench judgment of Sushila Aggarwal (supra) framed following two questions for its consideration and has answered these questions as follows:-

"91. This Court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications Under Section 438, Code of Criminal Procedure:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980 : 1980 (2) SCC 565, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

(2) It may be advisable for the court, which is approached with an application Under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

(3) Nothing in Section 438 Code of Criminal Procedure, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437(3), Code of Criminal Procedure [by virtue of Section 438(2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

(4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

(5) Anticipatory bail granted can, depending on the conduct and behavior of the Accused, continue after filing of the charge sheet till end of trial.

(6) An order of anticipatory bail should not be "blanket" in the sense that it should not enable the Accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

(8) The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the Accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya.

(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction Under Section 439(2) to arrest the Accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc v. Ramprasad Vishwanath Gupta and Anr. MANU/SC/0616/2011 : (2011) 6 SCC 189; Jai Prakash Singh (supra) State through C.B.I. v. Amarmani Tripathi MANU/SC/0677/2005 : (2005) 8 SCC 21). This does not amount to "cancellation" in terms of Section 439(2), Code of Criminal Procedure.

(12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. MANU/SC/1021/2010 : 2011 (1) SCC 694 (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra (MANU/SC/0280/1996 : 1996 (1) SCC 667) and subsequent decisions (including K.L. Verma v. State and Anr. MANU/SC/1493/1998 : 1998 (9) SCC 348; Sunita Devi v. State of Bihar and Anr. MANU/SC/1032/2004 : 2005 (1) SCC 608; Adri Dharan Das v. State of West Bengal MANU/SC/0120/2005 : 2005 (4) SCC 303; Nirmal Jeet Kaur v. State of M.P. and Anr MANU/SC/0695/2004 : 2004 (7) SCC 558.; HDFC Bank Limited v. J.J. Mannan MANU/SC/1923/2009 : 2010 (1) SCC 679; Satpal Singh v . the State of Punjab MANU/SC/0413/2018 and Naresh Kumar Yadav v. Ravindra Kumar MANU/SC/8067/2007 : 2008 (1) SCC 632) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.

92. The reference is hereby answered in the above terms."

Coming to the facts of the instant case, the allegations against the applicant are to the tune that he demanded some money and taken the same for doing job and made fraud and the work was not done. There was no independent eye witness of the alleged payment. The alleged offences against the applicant are triable by magistrate. The applicant is not carrying any criminal history and nothing has been brought to the knowledge of this Court as to whether the custodial interrogation of the applicant is required. Thus, having regard to all the facts and circumstances of the case and keeping in view the law laid down by the Hon'ble Supreme Court in the above-mentioned cases, in the considered opinion of this Court, protection from arrest could be granted to the applicant till the conclusion of the trial.

Having regard to the special circumstances mentioned herein-above, the instant application is finally disposed of with a direction that that in the event of arrest of the accused-applicant, namely, Abdul Rahim, involved in Case Crime No. 356 of 2022, under Section 419, 420, 406 I.P.C., Police Station Kotwali Nanpara, District Bahraich, he shall be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

(1) The accused-applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

(2) The accused-applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

(3) The accused-applicant shall cooperate in the trial/investigation sincerely without seeking any adjournment.

(4) The accused-applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

(5) In case, the accused-applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(6) The accused-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) That the accused-applicant shall not leave the country without the permission of the Court.

(8) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

(9) 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.

It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the anticipatory bail application and must not be construed to have any reflection on the ultimate merit of the case.

Order Date :- 14.12.2022 /Mustaqeem