Monika Agarwal vs State Of U.P.
2022 Latest Caselaw 4020 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 69
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3523 of 2022
 

 
Applicant :- Monika Agarwal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rohan Gupta
 
Counsel for Opposite Party :- G.A.,Rakesh Dubey,Sudhir Mehrotra
 
Along with 
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3493 of 2022
 

 
Applicant :- Priti Agarwal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rohan Gupta
 
Counsel for Opposite Party :- G.A.,Rakesh Dubey
 
And
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 17919 of 2021
 

 
Applicant :- Sameer Agarwal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rohan Gupta
 
Counsel for Opposite Party :- G.A.,Prashant Kumar Singh,Rakesh Dubey,Sudhir Mehrotra 
 
Hon'ble Mohd. Faiz Alam Khan,J.

On the request of learned counsel for the parties, above mentioned three cases were connected as they were pertaining to the same case crime number and are being decided by this common order in order to avoid repetition of discussion.

Heard Shri Rohan Gupta, learned counsel for the applicants, Shri Sudhir Mehrotra, learned counsel appearing for the victims namely Ramji Sahgal, Shri Rakesh Dubey, learned counsel for the informant/complainant as well as learned A.G.A. for the State and perused the record.

The present anticipatory bail applications have been moved by the accused/applicants - Monika Agarwal, Priti Agarwal and Sameer Agarwal in Case Crime No.4 of 2020, under Sections 420, 467, 468, 471, 120B I.P.C, Police Station Kotwali, District Kanpur Nagar, with the prayer to enlarge them on anticipatory bail as they are apprehending arrest in the above-mentioned case.

The case of the prosecution is to the tune that one Pratibha Sahgal was the owner of the impugned property and she sold the same to Smt. Priti Agarwal and Smt. Monika Agarwal on 06.02.2007 by executing a registered sale deed for consideration of Rs.60 lakh and the consideration was paid to the above mentioned Pratibha Sahgal by four cheques of the amount of Rs.1 lakh, Rs.50 lakh, Rs.4.5 lakh and Rs.4.5 lakh dated 01.07.2002, 01.02.2007 and 05.02.2007 respectively. However, subsequently the above mentioned Pratibha Sahgal had filed a suit bearing Original Suit No.2038 of 2009 for cancellation of sale deed on the ground that Rs.9 lakh from total consideration of Rs.60 lakh were not received by her and the suit for cancellation of the sale deed was decreed ex parte vide order dated 20.04.2011 thereafter the purchasers namely Smt. Priti Agarwal and Smt. Monika Agarwal had filed an application under order IX Rule 13 C.P.C. on 11.04.2012 for setting aside the ex parte decree. However, the same is stated to be still pending before the subordinate court. It is also worth mentioning that a testamentary suit was also filed by the opposite party bearing Testamentary Suit No.3 of 2007 wherein on 15.02.2007, order for maintaining status qua was passed, however, the applicants claimed that they were not made party to the said testamentary suit and they were not aware of any order passed therein. It is during pendency of the application moved by the applicants under Order IX Rule 13 C.P.C., they executed an agreement to sale in favour of one Jyoti Prakash Newatia on 18.04.2019 to sell the disputed property for Rs.2 crores, out of which Rs.21 lakh have been taken as advance money.

Learned counsel for the accused-applicants while pressing the bail application submits that the applicants have been falsely implicated in this case and they have not committed any offence as claimed by the prosecution.

Learned counsel for the applicants further submits that the F.I.R. of this case has been lodged on fabricated and concocted facts on the score that at first the applicants Smt. Priti Agarwal and Smt. Monika Agarwal were not the party in the testamentary suit and secondly they were not having any knowledge of the order of status quo passed therein and they were also not bound by the order of status quo. Moreover no right has been transferred by executing the agreement to sale in favour of Jyoti Prakash Newatia and it has been clearly specified in the agreement to sale that there are certain disputes pending in different courts and the sale deed shall be executed after settling/disposing of these disputes, thus no right has been created in favour of Jyoti Prakash Newatia and the F.I.R. is premature as no attempt has been made by the applicants to deceive the informant.

It is also submitted that even if the case of the informant/prosecution is taken on its face and if the applicants have committed any contempt of any court then they could only be punished for contempt of court but no F.I.R. could be lodged with regard to the same. It is next submitted that the instant matter is purely of civil nature and has been given the colour of criminal case. The applicants have not committed any wrong and they are ready to cooperate in the investigation rather they themselves are the victims of circumstances as despite paying Rs.60 lakh to Smt. Pratibha Sahgal, they could not enjoy the fruits of the property purchased by them and even after the cancellation of their sale deed ex parte, their consideration has not been returned back to them. To elaborate further it is submitted that informant had already filed a Civil Misc Contempt Application No.4612 of 2019, Laxman Sahgal and Others Vs. Smt. Priti Agarwal and Others before this Court requesting that the contemnors be punished for executing registered agreement to sale in violation of the order dated 15.02.2007 passed in Testamentary Suit No.3 of 2017.

It is also submitted that it was specifically stated in the agreement to sale executed by Priti Agarwal and Monika Agarwal that the sale deed would be executed only after the little of the property gets cleared and litigation is taken to its logical conclusion. Thus no wrongful loss has been caused to the informant. It is also urged that the applicants had earlier approached this Court by filing Criminal Misc. Writ Petition No.1597 of 2020 and vide order dated 03.02.2020, they were granted protection from arrest till submission of charge sheet. Now charge sheet has been submitted and they are having apprehension that if they will appear before the trial court for obtaining regular bail, the same may take sometime for disposal and they, in the meantime, may be confined to prison. They have cooperated in the investigation and will also cooperate in the trial and there is no occasion for seeking their interrogation as charge sheet has already been filed. The applicants are not having any criminal history, therefore, protection from arrest be granted to them till conclusion of trial.

Shri Sudhir Mehrotra, learned counsel appearing for the victims vehemently submits that the applicants despite having all the knowledge that sale deed executed in their favour has been cancelled and they now do not have any title, had executed agreement to sale by mentioning that they are the sole owner, in possession and owner of the property. It is also stated by them that property is free from any kind of gift, agreement to sale or surety. It is further submitted that the ill will and bad intention of the applicants could also be gathered from the fact that Jyoti Prakash Newatia, in favour of whom agreement was executed, is a tenant in the said property and therefore the intention was to cheat the real owners. Jyoti Prakash Newatia is not a stranger and he has entered into the agreement with a view to avoid the payment of arrears of rent to the informant. It was also submitted that no order of any kind was ever passed under Order IX Rule 13 C.P.C. on the application moved by the applicants and therefore agreement to sale was executed by applicants to cause wrongful loss to the informant and they are not entitled for any protection.

Learned counsel for the informant has also opposed the prayer of the applicants on the ground that the charge sheet has been submitted against the applicants and the same was challenged by filing Application U/S 482 Cr.P.C. Nos.4865 of 2021 and 5108 of 2021 and vide order dated 02.08.2021 the same was dismissed and Special Leave to Appeal (Criminal) No.6472 of 2021 preferred against this order was also rejected on 06.09.2021 by Hon'ble Supreme Court.

The provision of 438 Cr.P.C., (U.P. Amendment) is reproduced hereinbelow:-

"438. (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(i) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iil) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.

(2) Where the High Court or, as the case may be, the Court of Session, consider it expedient to issue an interim order to grant anticipatory bail under sub section (1), the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit, and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:-

(i) that the applicant shall make himself available for interrogation by a police officer as and when required;

(ii) 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;

(iii) that the applicant shall not leave India without the previous permission of the Court; and

(iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

Explanation:- The final order made on an application for direction under sub-section (1); shall not be construed as an interlocutory order for the purpose of this Code

(3) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court

(4) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order.

(5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under sub-section (1), within thirty days of the date of such application.

(6) Provisions of this section shall not be applicable -

(a) to the offences arising out of -

(i) the Unlawful Activities (Prevention) Act, 1967;

(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985;

(iii) the Official Secret Act, 1923;

(iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.

(b) in the offences, in which death sentence can be awarded.

(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."

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 and Ors. Vs. State (NCT of Delhi) and Ors., MANU/SC/0100/2020 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."

Having heard learned counsel for the parties and having perused the record, it is evident that there are some facts which are not disputed. It is not in dispute that Smt. Pratibha Sahgal had executed a sale deed in favour of Monika Agarwal and Priti Agarwal on 06.02.2007. The informant on 15.02.2007 filed a Testamentary Suit No.3 of 2007 and status quo order was passed therein. In 2009 a suit for cancellation of sale deed executed in favour of Monika Agarwal and Priti Agarwal was filed by Pratibha Sahgal, which was decreed ex parte in 2011. In 2012, applicants had moved an application under Order IX Rule 13 C.P.C. to recall this ex parte decree, however, no order is stated to have passed yet on this application. On the basis of sale deed dated 06.02.2007, which was cancelled vide ex parte decree, the applicants Monika Agarwal and Priti Agarwal executed an agreement to sale in favour of Jyoti Prakash Newatia, who was already a tenant in the disputed premises for consideration of Rs.2 crores and Rs.21 lakh was taken by them as advance money. The averments in the agreement to sale will reveal that they have shown themselves as the sole owner of the property and also that the property is clean and they have not been restrained by any court from selling this property and it was also stipulated that the sale deed will be executed after the settlement of the disputes. Jyoti Prakash Newatia, in favour of whom agreement to sale has been executed, was already in possession of disputed premises as tenant. Thus by execution of agreement to sale, informant has lost nothing as no title was transferred to Jyoti Prakash Newatia as the sale deed on the basis of agreement to sale was executed was already cancelled by the civil courts.

It is contended by learned counsel for the applicants that it may be Jyoti Prakash Newatia, who could claim that agreement to sale has been executed in his favour even when applicants Monika Agarwal and Priti Agarwal were not owners of the property as the sale deed under which they are claiming title had been cancelled by the competent civil court, but informant could not claim that any wrongful loss or injury to his title has been caused by the execution of the impugned agreement to sale by applicants Monika Agarwal and Priti Agarwal. The applicants have cooperated in the investigation and charge sheet has been filed against them. It is not shown as to what purpose will be served by confining the applicants in prison. Applicants Monika Agarwal and Priti Agarwal are ladies. The are not having any criminal history, however, applicant Sameer Agarwal is having a criminal history of 8 cases, out of which in one case, he has been acquitted and in other five cases, final report has been submitted and in other two cases, he has been granted bail and he is not a convict.

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.

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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 Supplied)

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 order of the subordinate court would also reveal that while rejecting prayer of anticipatory bail of the applicants, the subordinate court has opined that after submission of charge sheet, anticipatory bail application is not maintainable as the applicants are not having any apprehension of being arrested.

In the considered opinion of this Court, the observation of the subordinate court is not in accordance with law laid down by Hon'ble Supreme Court in many cases. It may be recalled that the anticipatory bail application even after submission of the charge-sheet is maintainable, if the applicant is having an apprehension that he would be arrested in pursuance of the process issued by the Court. Reference in this regard can be taken of Bharat Chaudhary and others Vs. State of Bihar, (2003) 8 SCC 77 (SC) and Ravindra Saxena vs. State of Rajasthan (2010) 1 SCC 684. Thus, submission of the charge-sheet is not a hindrance in considering the prayer of anticipatory bail of an accused person.

It is also to be recalled that under Section 204 Cr.P.C., the Magistrate after taking cognizance of an offence, can issue summons for the attendance of the accused. In a warrant case, he may issue warrant directing the police to arrest the accused and to produce before him at a certain time. Though the Magistrate invariably issues summons even in a warrant case under Section 204, Cr.P.C. after taking cognizance, in a police case, when the police intimated to the Court that the accused person was not arrested, since he was absconding, the Magistrate issues warrant directing the police to apprehend the absconding accused.

In fact, only when the charge sheet is filed and the cognizance is taken by the Magistrate and the process is issued, the apprehension of arrest will become more stronger. At least, during the course of investigation it could be said that the apprehension of arrest is not reasonable, since under Section 41(A) Cr.P.C. the arrest is not mandatory. The reading of Section 41 Cr.P.C. would also make clear that the arrest need not be resorted to in all cases automatically. The police has got a large discretion to arrest or not to arrest a person.

Therefore, it can be said that after filing of the charge sheet once the warrants/summons are issued for appearance of the accused, then there would certainly be an apprehension of arrest.

In the case of Directorate of Enforcement v. Deepak Mahajan -1994 SCC (Crl) 785, the Hon'ble Supreme Court has held in para nos.48 and 53 as under:-

"48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is entitled to take that accused persons into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender......

53. ..... In the backdrop of the above legal position, the conclusion that can be derived is that a Magistrate can himself arrest or order any person to arrest any offender if that offender has committed an offence in his presence and within his local jurisdiction or on his appearance or surrender or is produced before him and take that person (offender), into his custody subject to the bail provisions."

Therefore, this is clear that an accused can apprehend arrest even by the Magistrate for the purpose of remanding him to custody for the offences, which are non-bailable and this would certainly make that person to be entitled for approaching the Court under Section 438 Cr.P.C.

It is also contended by learned counsel for the applicants that if applicants Monika Agarwal, Priti Agarwal and Sameer Agarwal had committed contempt of any court, they may be punished accordingly. However, it is vehemently submitted on behalf of applicants Monika Agarwal and Priti Agarwal that it is written by them in the agreement to sale that they will not execute sale deed unless the dispute with the informant is decided by a competent court and they are ready to file an undertaking before the trial court that they will not execute the sale deed in pursuance of agreement to sale without permission of the competent court(s) or only after the dispute with informant is adjudicated finally.

Hon'ble Supreme Court in the case of Bhadresh Bipinbhai Sheth v. State of Gujarat - (2016) 1 SCC 152 has held that there is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail and a person seeking anticipatory bail is a free person entitled to presumption of innocence.

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 may be granted to the applicants namely Monika Agarwal, Priti Agarwal and Sameer Agarwal.

Having regard to the special circumstances mentioned herein-above, the instant applications are allowed and it is directed that in the event of arrest of the applicants namely Monika Agarwal, Priti Agarwal and Sameer Agarwal involved in the above noted case or on their appearance before the court below within 30 days from today i.e. till 27th June, 2022, whichever is earlier, they shall be released forthwith on anticipatory bail on their furnishing personal bond of Rs.50,000/- and two sureties each in the like amount to the satisfaction of the Station House Officer of the Police Station concerned/ Investigating Officer/trial court with the following conditions:-

(1) The applicants within 30 days from today i.e. till 27th June, 2022 shall appear before the trial court and shall move an application for bail.

(2) 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;

(3) The applicants shall not leave the country without the previous permission of the Court.

(4) The applicant shall remain present before the trial court as and when required and will not take unnecessary adjournments specially when the prosecution witnesses are present.

(5) As stated on behalf of the applicants, the applicants namely Monika Agarwal and Priti Agarwal shall file an undertaking before the subordinate court that they will not execute any sale deed in pursuance of agreement to sale executed in favour of Jyoti Prakash Newatia unless permission has been obtained from the competent courts or the dispute has been finally adjudicated.

(6) The trial court in addition to the above conditions may also impose any other reasonable condition(s) on the applicants for the purpose of expeditious trial.

If applicants will not comply the terms and conditions of this order or will not appear before the trial court as and when required the trial court would be justified in issuing coercive process against them and this order will not be a hurdle in ensuring the presence of the applicants before the trial court.

Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this Court on the merits of the case.

Order Date :- 25.5.2022

Anupam S/-