Sarika Yadav And Another vs State Of U.P. Thru. Secy. Home And ...
2022 Latest Caselaw 14245 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- APPLICATION U/S 482 No. - 7321 of 2022
 

 
Applicant :- Sarika Yadav And Another
 
Opposite Party :- State Of U.P. Thru. Secy. Home And Another
 
Counsel for Applicant :- Ram Asarey Verma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard learned counsel for applicants as well as learned Additional Government Advocate for the State and perused the record.

The instant application under Section 482 Cr.P.C. has been filed by the applicants namely Sarika Yadav and Ashish Kumar Yava with the prayer to quash the charge-sheet no.98 of 2022 dated 13.03.2022 and summoning order dated 21.07.2022 passed by the Chief Judicial Magistrate, Sitapur as well as the entire proceedings of Criminal Case No.4377 of 2022 (State Vs. Ashish Kumar Yadav & another), arising out of Case Crime No.378 of 2021, under Section 420 I.P.C., Police Station Kotwali Nagar, District Sitapur pending before the court below.

Learned counsel for the applicants has made many factual submissions to demonstrate that the FIR was lodged on false and concocted facts just to pressurize and harass the applicants and the Investigating Officer without going deep into the matter in a cursory manner has submitted the charge-sheet, and the Court below has also taken cognizance without considering the matter in right perspective and, therefore, the Charge-sheet, the order of the Magistrate, whereby the cognizance has been taken and process is issued are bad in law and the same be quashed.

Learned A.G.A. while controverting the arguments of the learned counsel for applicants submits that, the arguments of the learned counsel for applicant is, with regard to the factual aspects of the case which cannot be gone into by this Court, while exercising jurisdiction under Section 482 of the Cr.P.C.

Having regard to all the facts and circumstances of the facts and keeping in view the law laid down by the Hon'ble Supreme Court in 'State of Gujarat vs. Afroz Mohammed Hasanfatta reported in 2019 SCC online SC 132', no illegality appears to have been committed by the trial court in taking the cognizance of the offence and by issuance of the process against the applicants. Thus so far as the prayer for quashing the charge-sheet as well as summoning order and entire proceedings is concerned, prima facie commission of cognizable offence is emerging against applicants and the same in the back ground of the law propounded by Hon'ble Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq, another (Para-10) 2005 SCC (Cr.) 283 and lastly Parabatbhai Ahir & Ors. Vs. State of Gujarat, AIR 2017 SC 4843, is hereby refused.

It is an admitted case of the parties that the charge sheet in this case has been filed by the investigating officer without making arrest of the applicants and there is nothing on record, which may suggest that the applicants have not cooperated in the investigation. All the offences, with which the applicants have been charged, are triable by magistrate and are punishable with upto 7 years of imprisonment.

The Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 had held as under:

"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. (emphasis mine)

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." (emphasis mine)

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 it is 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."

The above mentioned law reports would reveal that the Hon'ble Supreme Court has chalked out a complete mechanism for the offences punishable with upto 7 years of imprisonment in the above Satender Kumar Antil (supra) and Aman Preet Singh (supra), thus, without going into merits and demerits of the allegations and counter allegations of the parties, the instant application moved by the applicant is finally disposed of in terms that the applicant may move appropriate regular bail application before the trial court within 30 days from today and if such an application is moved within the period stipulated herein-before, the trial court shall be under an obligation to dispose of the same in accordance with the law mentioned above.

It is further provided that after obtaining regular bail, if any application under Section 239 Cr.P.C. is moved by the applicants enclosing therewith documentary evidence, which has been placed before this Court in support of his case, for the purpose of their discharge within a reasonable time at an appropriate stage, the trial court shall be under an obligation to dispose of the same by a reasoned and speaking order, after providing an opportunity of being heard to the parties, strictly in accordance with law.

Order Date :- 17.10.2022

Anupam S/-