Upendra Singh vs State Of U.P And Another
2022 Latest Caselaw 22200 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8303 of 2022
 

 
Applicant :- Upendra Singh
 
Opposite Party :- State Of U.P And Another
 
Counsel for Applicant :- Yagyavalk Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

Heard learned counsel for the applicant and learned Additional Government Advocate for the State.

The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending his arrest in connection with Case Crime No.248 of 2022, under Sections 3/4/5 of the Immoral Traffic (Prevention) Act, 1956, Police Station Panki, District Kanpur Nagar.

Learned counsel for applicant has submitted that the applicant is innocent and has falsely been implicated in this case. The FIR of this case was lodged by S.I. Pankaj Kumar against the applicant and other co-accused persons with the allegation that Inspector In-charge Feelkhana Shri Amit Bhadhana had informed him through telephone that in Ram Ganga Enclave Apartment, in Flat No. A5/17, Block No. 5 near Kashipur Colony Chowki some male and female persons are living on rent and are running a sex racket who name are M.J. Khan, Sheelu, Pallavi, Upendra Singh and Amit alias Bhim and on this information he went to the apartment and enquired from the persons then they informed that in block No. 5, the ladies were residing are involved in illegal activities and on 23.06.2022, raid was made by some police and since then they are not looking.

Learned counsel for applicant has submitted that only the basis of hearsay evidence, false and frivolous FIR was lodged against the applicant. Further submission is that the true fact is that on 23.06.2022 the applicant went to Panki temple for worship and on returning, a person had stopped his vehicle and on being asked, the person told his name Rahul and suddenly two police personnel also came to support him and started beating the applicant and forcibly took the applicant at Ramthaya Dhaba Bithoor and had snatched his gold chain and ring along with the money and in the morning, they left the applicant then he went to his Advocate namely Dharmendra Singh and narrated the entire story. Thereafter an application moved by Dharmendra Singh on 24.06.2022 to the Inspector In-charge Panki Kanpur Nagar as well as to the higher authorities.

Further submission is that on the direction of the Assistant Commissioner of Police, a team was constituted. After search a raid was made by the said team where four persons were found whereas one person managed to escape and three persons were arrested. The arrested persons were (i) S.I. Bhuwneshwari Singh, in whose possession a gold chain and ring (ii) Home guard Sanjeev Kumar Vishwakarma, in whose possession two gold rings and (iii) Mata Prasad Gupta, in whose possession Rs. 20,000/- were recovered.

Being aggrieved with this raid by the team, in retaliation, FIR of this case was lodged against the applicant only to exert pressure upon the him. The allegation against the applicant that allegation of running sex racket is baseless, false and fabricated. Nothing incriminating has been recovered from the possession of the applicant. It is further submitted that interim protection was granted by this Court vide order dated 9.9.2022. Due to this FIR, there is apprehension of arrest against the applicant. The applicant is ready to cooperate in the investigation, therefore no need of custodial interrogation of the applicant, hence, the applicant may be enlarged on anticipatory bail till conclusion of trial and he is ready to cooperate with the trial. If the applicant is granted anticipatory bail, he will never misuse the same. In support of his submission, learned counsel for the applicant has relied upon the judgement of Hon'ble Apex Court in the case of Aman Preet Singh vs. C.B.I. through Director, AIR 2021 Supreme Court 4154.

Learned Additional Government Advocate has vehemently opposed the prayer for anticipatory bail to the applicant. Thus, the anticipatory bail application of the applicant is liable to be rejected.

I have considered the rival submissions advanced by learned counsel for the parties and perused the entire material available on record.

The Hon'ble Supreme Court in the case of Aman Preet Singh (Supra), the Court has observed as under:

"10. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

11. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

In Aman Preet Singh (supra), the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, I am of the opinion that it is a fit case for grant of bail to the applicant.

Accordingly, the anticipatory bail application is hereby allowed.

Let the applicant (Upendra Singh), be released on bail in the aforesaid case crime number by the trial Court till conclusion of trial on furnishing a personal bond and, two sureties each in the like amount to the satisfaction of the trial Court concerned with the following conditions:

(i) The applicant shall not leave India during the currency of trial without prior permission from the concerned trial Court.

(ii) The applicant shall surrender his passport, if any, to the concerned trial Court forthwith. His passport will remain in custody of the concerned trial Court.

(iii) That the applicants 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 them from disclosing such facts to the Court or to any police officer;

(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when 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;

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. The applicant shall cooperate in the investigation;

(vi) In case, the 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; and

(vi) 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.

(vii) The applicant is directed to immediately participate in the trial otherwise, benefit of this order shall not be made available to him.

Order Date :- 21.12.2022

Virendra