Sandeep And Another vs State Of U.P. And Another
2022 Latest Caselaw 2569 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 69
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2553 of 2022
 
Applicant :- Sandeep And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Ronak Chaturvedi
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Mohd. Faiz Alam Khan,J.

(Criminal Misc. Application No.2 of 2022)

Heard Shri Ronak Chaturvedi, learned counsel for the applicants as well as learned A.G.A. for the State and perused the record.

The instant application has been moved by the applicants with the prayer that the Chief Judicial Magistrate, Bijnor be directed to properly dispose of the application of the applicants in terms of the judgement of this Court dated 05.04.2022 passed in Criminal Misc. Anticipatory Bail Application No.2553 of 2022, whereby the anticipatory bail application of the applicants was disposed of in terms that the applicants may move an appropriate application before the trial court for releasing them on bail and if such application is moved within the stipulated period, the trial court shall pass appropriate order in the light of the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others: MANU/SC/1024/2021.

Learned counsel for the applicants while drawing attention of this Court towards the order of this Court dated 05.04.2022 and the order dated 22.04.2022 passed by the Chief Judicial Magistrate, Bijnor submits that this Court while disposing of the anticipatory bail application of the applicants had directed the trial court to dispose of regular bail of the applicants in light of the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil (supra), however, the trial court has dismissed the application of the applicants on the ground that the applicants have not submitted themselves to the custody of the trial court and they have not surrendered and the applicants are claiming anticipatory bail in the guise of regular bail and therefore, the bail application of the applicants are not maintainable as they are not in the custody of the court.

Learned counsel for the applicants in this regard has drawn the attention of this Court towards the judgement of the Hon'ble Supreme Court passed in Satender Kumar Antil (supra), whereby it is provided that if two conditions are satisfied i.e. the accused is not arrested during investigation and secondly has cooperated throughout in the investigation including appearing before Investigating Officer whenever called for the offences, which are categorized in 'A' i.e. offences punishable with imprisonment upto 7 years of imprisonment, ordinary summons shall be issued and if on their non appearance, non bail warrant may be issued, but the same may also be cancelled and the bail application of such accused person on his appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.

It is vehemently submitted that the case of the applicants is covered in the cases provided in the category 'A' of the judgement of Satender Kumar Antil (supra). It is vehemently submitted that the Chief Judicial Officer, Bijnor without going through the judgement of the Hon'ble Supreme Court passed in Satender Kumar Antil (supra) has passed the order on his 'whims' while it was specifically provided in Satender Kumar Antil (supra) that there is no need to surrender for the purpose of getting bail under Section 439 Cr.P.C. for the offences, which are categorized in category 'A' and thus it is vehemently submitted that a suitable direction be given to the court below for properly disposing of the bail application of the applicants.

Learned A.G.A. has also not disputed the legal position clarified by the Supreme Court in the aforesaid Satender Kumar Antil (supra).

Having heard learned counsel for the parties, having perused the record, it is evident that this Court had disposed of the anticipatory bail application of the applicants namely Sandeep and Rahul in Case Crime No.469 of 2021, under Sections 452, 323, 336, 504, 506 I.P.C, Police Station Dhampur, District Bijnor vide order dated 05.04.2022 passed in Criminal Misc. Anticipatory Bail Application No.2553 of 2022. Operative portion of the order is reproduced as under:

"Thus without entering into merits and demerits of the case the instant anticipatory bail application moved on behalf of the applicants is disposed of in terms that the applicants may move an appropriate application before the trial court for releasing them on bail and if such application is moved within 20 days from today the trial court shall pass appropriate order in the light of the law laid down by the Hon'ble Supreme Court in Satender Kumar Antill (supra)."

For ready reference and also for the guidance of the Chief Judicial Magistrate, Bijnor. the order of the Hon'ble Supreme Court passed in Satender Kumar Antil (supra) is also reproduced as under:

"1. Application for intervention is allowed.

2. We have been provided assistance both by Mr. S.V. Raju, learned Additional Solicitor General and Mr. Sidharth Luthra, learned senior counsel and there is broad unanimity in terms of the suggestions made by learned ASG. In terms of the suggestions, the offences have been categorized and guidelines are sought to be laid down for grant of bail, without fettering the discretion of the courts concerned and keeping in mind the statutory provisions.

"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under:

"Categories/Types of Offences

A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.

B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.

D) Economic offences not covered by Special Acts.

Requisite Conditions

1) Not arrested during investigation.

2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.

(No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615)

CATEGORY A

After filing of chargesheet/complaint taking of cognizance

a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.

b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.

c) NBW on failure to failure to appear despite issuance of Bailable Warrant.

d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

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.

CATEGORY B/D

On appearance of the accused in Court pursuant to process issued bail application to be decided on merits."

CATEGORY C

Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.

4. Needless to say that the category A deals with both police cases and complaint cases.

5. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with.

6. We may also notice an aspect submitted by Mr. Luthra that while issuing notice to consider bail, the trial Court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest. On this aspect also we would give our imprimatur and naturally the bail application to be ultimately considered, would be guided by the statutory provisions.

7. The suggestions of learned ASG which we have adopted have categorized a separate set of offences as "economic Offences" not covered by the special Acts. In this behalf, suffice to say on the submission of Mr. Luthra that this Court in Sanjay Chandra vs.CBI, (2012) 1 SCC 40 has observed in para 39 that in determining whether to grant bail both aspects have to be taken into account:

a) seriousness of the charge and

b) severity of punishment.

Thus, it is not as if economic offences are completely taken out of the aforesaid guidelines but do form a different nature of offences and thus the seriousness of the charge has to be taken into account but simultaneously, the severity of the punishment imposed by the statute would also be a factor.

8. We appreciate the assistance given by the learned counsels and the positive approach adopted by the learned ASG.

9. The SLP stands disposed of and the matter need not be listed further.

10. A copy of this order be circulated to the Registrars of the different High Courts to be further circulated to the trial Courts so that the unnecessary bail matters do not come up to this Court.

11. This is the only purpose for which we have issued these guidelines, but they are not fettered on the powers of the Courts.

12. Pending applications stand disposed of."

The directions of Hon'ble Supreme Court in Satender Kumar Antil (supra) has been again reiterated in the recent judgement in Aman Preet Singh Vs. C.B.I. through Director : 2021 SCC OnLine SC 941 by the Hon'ble Supreme Court and had held as under:

"9. In our view, the purport of Section 170, Cr.P.C. should no more be in doubt in view of the recent judgment passed by us in Siddharth v. State of Uttar Pradesh (Criminal Appeal No. 838/2021), 2021 SCC OnLine SC 615). In fact we put to learned senior counsel whether he has come across any view taken by this Court qua the said provision. Learned counsel also refers to judgments of the High Court which we have referred to in that judgment while referring to some judicial pronouncements of this Court on the general principles of bail. The only additional submission made by learned counsel is that while the relevant paragraphs of the judgment of the Delhi High Court in Court on its own Motion v. Central Bureau of Investigation (2004) 72 DRJ 629 have received the imprimatur of this Court, the extracted portions from the judgment of the Delhi High Court did not include para 26. The said paragraph deals with directions issued to the criminal Courts and we would like to extract the portion of the same as under:

"26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society.

Directions for Criminal Courts:

(i) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.

(ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the chargesheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.

(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.

(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.

(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance 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. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.

xxxxxxxxxx"

10. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170, Cr.P.C. which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in Sub-para (iii) above by the High Court are in the nature of caution.

11. 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. 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." (Emphasis mine)

Hon'ble Supreme Court in Siddharth v. State of UP : 2021 SCC OnLine SC 615 opined as follows:

"9. We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the investigating officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word "custody" appearing in Section 170 Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the investigating officer before the court while filing the charge-sheet.

10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused."

Perusal of the above mentioned case laws of the Hon'ble Supreme Court Satender Kumar Antil (supra), Aman Preet Singh (supra) and Siddharth (supra) would convey categorically that on the completion of two conditions mentoned in Satender Kumar Antil (supra) i.e. accused is not arrested during investigation and secondly has cooperated throughout in the investigation including appearing before Investigating Officer whenever called, a mechanism has been provided for the offences punishable with imprisonment upto 7 years of imprisonment for offences placed in category in 'A' and perusal of the procedure/mechanism/remedy provided in category 'A' would reveal that at the first instance after filing of the charge sheet/complaint and after taking of cognizance, summons will be issued and that too with the permission to appear through the lawyer and if such an accused is not appearing despite service of summons then bailable warrants should be issued for their physical appearance and on their failure to appear despite issuance of bailable warrants, non bailable warrants may be issued subject to the condition that non bailable warrants may be cancelled or converted into bailable warrants/summons without insisting physical presence of the accused person(s), if any application is moved on behalf of the accused persons for cancellation of the warrants. However, it is in clause (e) of the paragraph 3 pertaining to the category 'A' cases, it is provided that the bail application of such accused persons on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is finally decided.

Thus, it is crystal clear that if the conditions mentioned in the order of the Hon'ble Supreme Court in Satender Kumar Antil (supra) is fulfilled the submission of the accused person to the custody of the court is not required for considering of his bail under Section 439 Cr.P.C. The Chief Judicial Magistrate, Bijnor without considering the mandate of the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil (supra) has acted in a very cursory and casual manner while it was expected by him to have gone through the case law referred to in the judgement of this Court dated 05.04.2022.

Thus exercising judicial restraint from making any further comments on otherwise unusual conduct of the Chief Judicial Magistrate, Bijnor in not complying the order of this Court as well as Hon'ble Supreme Court, the instant application moved by the applicants namely Sandeep and Rahul is disposed of with a direction that a fresh bail application shall now be moved by the applicants before the Chief Judicial Magistrate concerned under Section 439 Cr.P.C. enclosing therewith copy of this order and the copy of order of this Court dated 05.04.2022 within 20 days from today and if such an application is moved, without tendering themselves to the custody of the court, it shall be an obligation of the Chief Judicial Magistrate, Bijnor to dispose of the same without insisting the applicants to submit themselves to the custody of the court, strictly in accordance with law laid down by Hon'ble Supreme Court in the above mentioned cases.

The Chief Judicial Magistrate, Bijnor shall keep in mind that when investigating agency has not arrested the accused persons during the course of investigation, there is no logic in sending them to prison, till they are complying the conditions placed by the trial court, while enlarging them on bail and they are regularly attending the court.

This Court hope and trust that the Chief Judicial Magistrate, Bijnor now have understood the law laid down by Hon'ble Supreme Court in above mentioned cases.

Order Date :- 12.5.2022

Anupam S/-