Hakeem And Another vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 2701 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- APPLICATION U/S 482 No. - 2425 of 2022
 

 
Applicant :- Hakeem And Another
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Civil Secrtt. And Another
 
Counsel for Applicant :- Ashish Raman Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karunesh Singh Pawar,J.

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

The present petition has been filed under Section 482 Cr.P.C. for quashing of the impugned order dated 7.3.2022 passed by learned trial court by which the application seeking bail moved on behalf of the petitioners had been rejected on the ground that since the applicants were not in custody before the learned trial court and therefore on this ground alone their bail application has been rejected.

Learned counsel for the petitioners further submits that petitioners and co-accused Ashok moved an application under Section 482 Cr.P.C bearing Criminal Misc. Case No. 5290 of 2021 in which they challenged the entire proceedings of the present case as well as summoning order dated 23.6.2021 and charge-sheet dated 2.4.2021.

Learned counsel for the petitioners has drawn attention of the Court towards the order dated 13.4.2022 passed by this Court in Case:- Application U/S 482 No.1451 of 2022, Ashok Kumar vs. State of U.P. and another where similar controversy has been decided by this Court.

The order dated 13.4.2022 passed in Case:- Application U/S 482 No.1451 of 2022, Ashok Kumar vs. State of U.P. and another passed by this Court is extracted below:-

"Heard learned counsel for petitioner as well as learned Additional Government Advocate for State.

The present 482 Cr.P.C. application has been filed to quash the impugned order dated 7.3.2022 passed by Addl. Sessions Judge-IV/Special Court (E.C. Act), Bahraich in bail application No.14/12A/2022 filed in Crl. Case No.7798 of 2021 State vs. Ashok Kumar arising out of Case Crime No.323 of 2020 under sections 419, 420 I.P.c., P.S. Ramgaon, district Bahraich.

Learned counsel for applicant submits that earlier petitioner had filed a petition under Section 482 of the Code of Criminal Procedure, 1973, bearing No.5290 of 2021, which was disposed of by this Court vide judgment and order dated 14.12.2021 providing that if a bail application is filed by the petitioner, the same shall be decided by the learned trial Court in view of law laid down by Hon'ble Supreme Court in the case of Satender Kumar Antil versus Central Bureau of Investigation and another(Special Leave to Appeal (Cri) No. 5191 of 2021,decided on 28.07.2021). He submits that in compliance of the aforesaid order passed by this Court, the petitioner filed bail application before the learned trial Court. However, learned trial Court has rejected the application by order impugned in present petition on the ground that the applicant was not in custody as provided under section 439(1) CrPC.

Learned counsel for the petitioner has drawn attention of the Court towards the order passed by the Hon'ble Supreme Court in Satender Kumar Antil (supra),which is on record. The relevant paragraph of the order dated 28.7.2021 is extracted below:-

"We put to learned senior counsel for the petitioner as to why the petitioner did not appear after summons were sent in pursuance to cognizance being taken as logically, the petitioner ought to have appeared and applied for regular bail and there should have been no case for anticipatory bail at that stage. Learned senior counsel submits that the system which is sought to be followed specially in the State of Uttar Pradesh is that even if a person is not arrested during investigation, on charge sheet being filed, more so, in such cases of CBI a person is sent to custody and thus, his appearance and applying for bail would have resulted in his being sent to custody."

Submission of the learned Counsel for the petitioners is that the word 'custody' has been defined by the Hon'ble Supreme Court in the case of Siddharth vs The State Of Uttar Pradesh reported in(2022) 1 SC 676.The relevant paragraph-9 is extracted below:-

"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 170of the 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 170of the 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."

It is, thus, submitted by learned counsel for the petitioner that since the petitioner was present before the learned trial Court at the time of final disposal of the bail application, therefore, that was enough for the purpose of custody.

Learned A.G.A., on the other hand, has submitted that there is no illegality in the impugned order as Section 439 (1)of the Code of Criminal Procedure, 1973mandates that only that person can be released on bail who is in the custody and not otherwise, therefore,the impugned order passed by the learned trial Court is justifiable.

It transpires from the impugned order that the bail application of the accused/petitioners has been rejected on the sole ground that at the time of hearing of the bail application, the accused/petitioner was not in judicial custody as mandated under Section 439 Cr.P.C.A perusal of the order of Hon'ble Supreme Court in the case of Satender Kumar Antil (supra)by which the offences have been categorized under Category 'A' to 'C' by the Hon'ble Supreme Court.It appears that offences in the present case comes under Category 'A'.

It is not in dispute that the accused/petitioner was not arrested during investigation and he has also co-operated with the investigation, therefore, the bail application of the such accused person on appearance has to be decided without the accused being taken into physical custody as has been observed by the Hon'ble Supreme Court in Satender Kumar Antil's case. The relevant portion of the judgement is extracted as under:-

"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 apt to mention that the word 'custody' has been interpreted by the Hon'ble Supreme Court in paragraph-9 of theSiddharth's case(supra), according to which, custody bearing in Section 170 Cr.P.C. does not mean either police or judicial custody. It merely requires the presentation of the accused by the Investigating Officer before the Court.

Submission of the learned Counsel for the petitioner in this case is that petitioner was very much present before the Court, however, has declined to go into the physical custody.

On due consideration to the arguments advanced by learned Counsel for the petitioners, learned A.G.A as well as taking into consideration the observations made by the Hon'ble Supreme Court in Satender Kumar Antil's case (supra)and Sidharth's case (supra),I am of the view that until the Investigating Officer does not believe that accused will abscondor disobey the summons,the bail application of the accused/petitioner could not have been rejected on the sole ground that the applicant was not in the physical custody as required under Section 439(1) Cr.P.C. rather in terms of the judgment of the Hon'ble Supreme Court, if the accused had appeared before the learned trial Court and the Investigating Officer does not believe that he will abscond or disobey the summons, mere presence before the trial Court should have been considered as in custody as provided under Section 170 Cr.P.C. without taking him into actual physical judicial or police custody.Thus,the impugned order is liable to be set-aside.

In view of the aforesaid, the instant petition is allowed. The impugned order dated 7.3.2022 is hereby set-aside. The matter is remanded to the learned trial Court with a direction to consider and decide the application of the accused/petitioner for bail in the light of the observations made by the Hon'ble Supreme Court in Satender Kumar Antil (supra) and Siddharth's case (supra). The accused / petitioner shall appear before the trial Court within fifteen days' from today. "

Learned counsel for the petitioner submits that the present petition be decided in the light of aforementioned case (supra) as the similar controversy has been taken into consideration by this Court in the case of co-accused, Ashok Kumar.

In view of the above, the petition is allowed in the light of order dated 13.4.2022 passed in Case:- Application U/S 482 No.1451 of 2022, Ashok Kumar vs. State of U.P. and another, and the impugned order dated 7.3.2022 passed by learned trial court is quashed.

The benefit of the order dated 13.4.2022 passed in Case:- Application U/S 482 No.1451 of 2022, Ashok Kumar vs. State of U.P. and another, shall be provided to the petitioners of this petition.

Order Date :- 13.5.2022

Madhu