Allahabad High Court
Kanhaiyalal Sharma vs State Of U.P. And Another on 4 May, 2022
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 84
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3315 of 2022
Applicant :- Kanhaiyalal Sharma
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Narayan Singh(Kushwaha)
Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicant and learned A.G.A.
The instant anticipatory bail application has been filed on behalf of the applicant with a prayer to release him on anticipatory bail in Case Crime No. 227 of 2021, under Sections 147, 452, 354B, 323, 504, 406 and 506 I.P.C., Police Station Jawan, District Aligarh, during pendency of investigation/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.
As per the prosecution case 9 persons have been named in the first information report and that general role of committing marpeet with the informant have been assigned to all the accused persons.
Learned counsel for the applicant submits that applicant is innocent and has falsely been implicated in the present case. He submitted that first information report has been lodged with an object to injure the reputation of the applicant by having him so arrested. He submitted that charge sheet and any police report under Section 173(2) Cr.P.C have not been filed till date. He submitted that applicant undertakes to cooperate during investigation and he will not tamper with the evidence in any way. He submitted that Tinku Sharma @ Lalit Sharma has been granted protection by another Bench of this Court vide order dated 02.03.2022 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 17594 of 2021, photocopy whereof have been annexed on page nos.29 onward of the paper book and role assigned to applicant is similar to role of aforesaid co-accused. He claims parity.
Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant but could not dispute the factum of parity with the co-accused.
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 them. After lodging of F.I.R, 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 F.I.R 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 right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made. The learned counsel has also place reliance on the order dated 28.7.2021 passed by the The Hon'ble Apex Court in Special Leave to Appeal (Criminal) No. 5191 of 2021 Satendra Kumar Antil vs. Central Bureau of Investigation, in which the Hon'ble Apex Court has observed that prima facie, we cannot appreciate why in such a scenario is there a requirement for the petitioner being sent to custody.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicants, considering that accusation might have been lodged with the object of injuring the reputation of the applicant by having him so arrested, considering that aforesaid co-accused have been granted protection by another Bench of this Court, considering the judgment passed by Hon'ble Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and in the case of Satendra Kumar Antil vs. Central Bureau of Investigation passed in Special Leave to Appeal (Criminal) No. 5191 of 2021.
In the event of arrest, the applicant shall be released on anticipatory bail.
Let the applicant Kanhaiyalal Sharma involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the trial court/ Investigating Officer concerned till the submission of police report under Section 173(2) Cr.P.C with the following conditions:-
1.The applicant shall, at the time of execution of the bond, furnish his address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.
2. The applicant shall not leave the country during the currency of trial/ investigation by police without prior permission from the concerned trial Court.
3. The applicant shall not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the Investigating Officer of the police;
4. The applicant shall surrender their passport, if any, to the concerned Court/ Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passport, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.
5. 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;
6. The applicant shall maintain law and order.
7. 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.
8. In case, the applicant misuses the liberty of bail, the 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 and the Government Advocate/informant/complainant can file bail cancellation application.
Order Date :- 4.5.2022
PS
