Rishabh Singh vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 11677 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 752 of 2023
 

 
Applicant :- Rishabh Singh
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Siddhartha Sinha,Arun Sinha,Ram Chandra Singh
 
Counsel for Opposite Party :- G.A.,Kapil Mishra
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Shri Arun Sinha, learned counsel for the applicant; learned A.G.A. for the State as well as Shri Jyotindra Mishra, learned Senior Counsel assisted by Shri Kapil Mishra, learned counsel appearing for the informant/complainant and perused the record.

The present anticipatory bail application has been moved by the accused/applicant- Rishabh Singh in Case Crime No./FIR No. 62/2022, under Sections 498-A, 323, 377 & 506 I.P.C, Police Station- Aliganj, District- Lucknow, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

Learned counsel for the accused-applicant while pressing this anticipatory bail application submits that applicant, who is the husband of the informant, has been falsely implicated in this case only on account of strained matrimonial relations wherein the applicant is not a privy.

While referring to the various photographs, allegedly of the informant, it is vehemently submitted that the prosecutrix since her marriage with the applicant was in habit of consuming liquor and she used to come late in the night and when her conduct was objected to by her husband and her father-in-law, she usually called the police on false accusation. In this regard, the information obtained through the R.T.I from the office of the Commissioner of Police, Lucknow placed at page No. 218 to 224 is referred.

It is further submitted that the conduct of the informant would also be evident that after lodging of the F.I.R of the instant case on false and fabricated facts, the parents-in-law of the informant (parents of the applicant) had filed a criminal writ and on 29.03.2022, the parties were called in the chamber of the Hon'ble Judge for the purpose of evaluating any scope for any amicable settlement. However, on 31.03.2022, under the pressure of the informant, the father-in-law, Shri Virendra Singh, was arrested by the police and on 01.04.2022, he was produced before the Chief Judicial Magistrate, Lucknow and during the course of remand, in furtherance of a plan/design, the informant moved an application before the Chief Judicial Magistrate, Lucknow stating that her father-in-law is suffering from various diseases and he be not sent to jail rather he be admitted in some hospital and under the orders of the Chief Judicial Magistrate, Lucknow, the father-in-law was admitted in the hospital.

Highlighting above, it is vehemently submitted that by putting the father-in-law in fear with the help of advocates, the informant/complainant had taken cheques of Rs. 3,50,00,000/- on 02.04.2022, from her father-in-law, Shri Virendra Singh, when he was detained in the hospital and an agreement was also drafted and signature of the father-in-law Shri Virendra Singh was obtained thereon and in pursuance of the cheques obtained by putting the father-in-law in fear, forty lakhs have also been withdrawn by her from the Bank.

It is also submitted that Shri Virendra Singh, father-in-law of the informant, was granted bail by the Sessions Judge, Lucknow and the complainant did not object for grant of bail to him.

It is next submitted that on 22.03.2022, the informant had forcefully entered into the house of the applicant, which was vacant as apprehending arrest nobody was present at the house and informant is illegally residing therein till now.

It is further submitted that F.I.R. of the case has been lodged against seven persons, but after investigation the charge sheet has been filed only against the applicant and his parents and the offences wherein the charge sheet has been filed against the applicant are 498-A, 377, 323 and 506 I.P.C.

It is vehemently submitted that allegations pertaining to Section 377 I.P.C. are patently absurd and could not be believed in the background of the fact that there is no evidence with regard to the same except the statement of the informant and the informant had also refused to undergo any internal medical examination.

While referring to page No. 225 to 237 of the paper book, which is the transcript of the alleged 'whats app chat' occurred between the applicant and informant, it is submitted that the complainant was pressurising and harassing the applicant since long to extort 'rupees One crore' from him.

Learned counsel for the applicant while referring to certain photographs allegedly of the informant with some other person submits that the conduct of the informant may be assessed by these photographs.

It is also submitted that apprehending the arrest, the applicant had approached this Court by filing a Criminal Misc. Writ Petition No. 2572 of 2022 and vide order dated 09.05.2022, protection from arrest was granted to him till the next date of listing and as he has cooperated in the investigation, there was no occasion for the investigating officer to arrest the applicant and the charge sheet has been filed without making his arrest.

It is next submitted that the dispute between the parties is purely of matrimonial nature and as the charge sheet has been filed and there is no evidence pertaining to the commission of offence under Section 377 I.P.C., there is no occasion for the custodial interrogation of the applicant and the applicant undertakes that he will cooperate in the trial as he has cooperated in the investigation. Thus, he be granted anticipatory bail during the course of trial.

Learned counsel for the applicant in support of his contention has relied on the judgement passed by Hon'ble Supreme Court in 'Bharat Chaudhary & Anr. Vs. State of Bihar & Anr. in Appeal (crl.) 1250 of 2003'.

Learned A.G.A. on the other hand opposes the prayer of anticipatory bail of the applicant on the ground that applicant is accused of committing heinous offences, therefore, he is not entitled for any protection.

Shri Jyotindra Mishra, learned Senior Counsel appearing for the informant, submits that it is a case where the informant who is the wife of the applicant has been tortured, dealt with cruelty in lieu of demand of dowry and even after making an amicable compromise, the terms of the same are not being followed by the father-in-law of the informant as the cheques which were given to the informant have been put on hold.

It is also submitted that since the charge sheet has been filed, the better course open for applicant to approach the trial court for getting his regular bail decided in the light of law laid down by the Hon'ble Supreme Court in 'Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773'.

It is further submitted that there is apprehension that after being granted facility of anticipatory bail, the applicant may not appear before the trial court and may linger on the process of trial. Thus, he is not entitled for any protection.

Learned Senior Counsel has relied on a judgment of this Court dated 05.04.2021 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 2110 of 2021, wherein the Hon'ble Single Judge has classified certain categories pertaining to which the anticipatory bail may and may not be granted to an accused.

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 opined as under:-

"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." (Emphasis mine)

Having heard learned counsel for the parties and having perused the record and keeping in view of the law laid down in Sushila Aggarwal (supra), it may be concluded 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 may also be taken of Bharat Chaudhary and others Vs. State of Bihar, (2003) 8 SCC 77 (SC) (relied on by applicant) 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.

So far as the contention of learned Senior Counsel appearing for the informat/complainant with regard to the fact that since the charge sheet has been filed the remedy available to the applicant is to approach the trial court for the purpose of obtaining regular bail, suffice is to say that Section 438 Cr.P.C. provides that when any person has reason to believe that he may be arrested, he may approach the High Court or Sessions Court. It does not refer to a particular time or stage to have such an apprehension of arrest and the words and language used under Section 438 Cr.P.C. (U.P. Amendment) is so clear, so as to lead to the conclusion that it is only the ingredient of 'apprehension of being arrested', which may give a cause of action to a party to approach the appropriate court for seeking anticipatory bail, irrespective of the stage of the investigation or trial and in this regard, submission of charge sheet may not be a hindrance, if otherwise, the accused of a crime is having a reasonable apprehension of being arrested and thus, in the considered opinion of this Court, reasonable apprehension of an accused that he may be arrested on an accusation of a non-bailable offence has alone to be given due weightage.

It is also worthwhile to recall that during the course of investigation, a discretion lies with the investigating officer to arrest or not to arrest an accused person, having regard to the material or evidence collected during the course of investigation, but, once the police report under Section 173(2) Cr.P.C. has been filed and the proceeding commences before the Magistrate or Special Court, initially, the summons are issued for the attendance of the accused and if he fails to appear, warrant directing the police to arrest him is issued. In the considered opinion of this Court, the apprehension of being arrested by the Court become more stronger, once the cognizance has been taken by the Court and the process has been issued for the appearance of the accused. Therefore, it could not be said that when an accused person has been arrested during the course of investigation, apprehension of being arrested is not available to him after submission of charge sheet. In the considered opinion of this Court, the Code of Criminal Procedure does not give power of arrest only to a police officer but also to a Magistrate or trial court as when an accused person appears before a Magistrate or trial court in answer to the process issued against him and surrenders voluntarily, he is taken into custody by the Magistrate or the trial court and he is dealt with in accordance with law. Thus, the arrest of a person appears to be a condition precedent for taking him into judicial custody and thus, there is no harm in concluding that the Magistrate or the trial court on surrender of an accused person can arrest an accused person appearing before it. In this regard, the law laid down by the Hon'ble Supreme Court in 'Directorate of Enforcement Vs. Deepak Mahajan 1994 SCC (Criminal) 785' may be taken into consideration.

Perusal of the record would reveal that applicant before this Court is the husband of the informant. It is also evident that they are having strained matrimonial relations and even before lodging of the first information report of this case, the husband and wife were not in good terms and certain complaints have been made by the informant to the police by dialing No. 112 and pertaining to which, the defence of the applicant is that the informant is a habitual drunkard and is in a habit of coming late in night, which was objected to by her father-in-law and her husband, whereon she made false complaints.

Prime facie, it also appears that on the arrest of the father-in-law, namely, Shri Virendra Singh on an application moved by the informant, he was directed to be lodged in a district jail after his medical check up at Balrampur hospital. It is alleged on behalf of the applicant that it was in that hospital, an agreement was forcefully executed between the informant and her father-in-law, Shri Virendra Singh and eight cheques of the amount of Rs.3,50,00,000/- were given to the informant out of which forty lakhs have been withdrawn. Admittedly, the applicant is not a party to that agreement, however, execution of agreement has been accepted by learned Senior Counsel for informant, as it is submitted that this agreement is not being honoured by father-in-law. It is also not in dispute that applicant is not having any criminal history and his personal liberty was protected under the orders of this Court during the course of investigation. Nothing has been brought before this Court which may suggest that applicant, during the course of investigation, has misused the liberty or has not cooperated in the investigation. The prosecutrix has refused to undergo any internal medical examination and it is in this background, it it submitted by learned counsel for the applicant that there is no medical evidence in support of the allegations pertaining to Section 377 I.P.C. and the same has been carved out to harass the applicant and his family members. The dispute between the parties appears to be of matrimonial nature and this Court does not find any ground on the basis of which, the protection which was granted to the applicant during the course of investigation may not be extended till the conclusion of trial subject to certain conditions and restrictions. Thus, for the reasons mentioned herein-before, in the considered opinion of this Court, the applicant is entitled for protection during the course of trial also.

Resultantly, the anticipatory bail application moved on behalf of the applicant- Rishabh Singh is hereby allowed and it is provided that in the event of arrest of the applicant in connection with Case Crime No./FIR No. 62/2022, under Sections 498-A, 323, 377 & 506 I.P.C, Police Station- Aliganj, District- Lucknow, under any process of the trial court or on his appearance/surrender before the trial court on or before 03.05.2023, whichever is earlier, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Trial Court concerned/Station House Officer of the Police Station concerned/ Investigating Officer, subject to the following conditions:

(1) The applicant shall not leave India during the pendency of trial without prior permission from the concerned trial court.

(2) The applicant shall cooperate in the investigation, if any further investigation is directed and will make himself available as and when required by the Investigating officer of the case, even for the discovery of any fact under Section 27 of the Indian Evidence Act.

(3) The applicant shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during his release on anticipatory bail.

(4) The applicant shall file an undertaking to the effect that he shall not seek any adjournment especially on the dates fixed for evidence and when the witnesses are present in court.

(5) In case, the applicant misuse the liberty of bail or violates any condition of this order, the trial court concerned may take appropriate action in accordance with law.

(6) The applicant shall remain present in person before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statements under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of their bail and shall proceed against him in accordance with law.

It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the trial proceedings in any manner.

Order Date :- 19.4.2023

Gurpreet Singh