Dharmapal Gautam Alias Bhikhari ... vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 22280 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:55018
 
A.F.R.
 
Court No. - 16
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1703 of 2023
 
Applicant :- Dharmapal Gautam Alias Bhikhari Gautam
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Sectt. Lko And Another
 
Counsel for Applicant :- Shakti Krishna Chaube,Praveen Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Subhash Vidyarthi J.
 
    1.

Heard Sri Praveen Tripathi, the learned counsel for the applicant, Sri Rao Narendra Singh, the learned counsel for the State and perused the records. 

2. The instant application has been filed by the applicant seeking anticipatory bail in Case Crime No. 277 of 2016, under Sections 60 Excise Act and Sections 255, 259, 260, 419, 420, 467, 468, 471, 272, 273 IPC, Police Station Karnailganj, District Gonda.

3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 19.07.2016 against two persons - Ramesh Verma and Dharam Pal Gautam alias Bhikhari Gautam (the applicant) by a Senior Sub Inspector of Police, alleging that on the basis of information received from a mukhbir, a police party reached the polisher (small scale rice mill) of the applicant. As per FIR case, co-accused Ramesh Verma was arrested another person escaped and the person arrested told that the person who ran away, was the applicant and he is the owner of the polisher. The F.I.R. states that about 25 litres illicit liquor kept in a jerry-can, some bottles containing illicit liquor and some injections were recovered from the premises.

4. The learned AGA has raised a preliminary objection on the ground that the allegations leveled in the FIR are of a serious nature and it is settled law that an application under Section 438 Cr.P.C. for grant of anticipatory bail should be entertained only in exceptional circumstances. In support of his submission Sri. Rao Narendra Singh, the learned AGA-I has relied upon the judgment in the case of P. Chidambaram v. Directorate Of Enforcement, (2019) 9 SCC 24. The aforesaid judgment was passed in an appeal against an order passed by the High Court of Delhi rejecting the appellant's plea for anticipatory bail in a case registered by Central Bureau of Investigation (CBI) being under Section 120-B IPC read with Section 420 IPC, Section 8 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and in the case registered by the Enforcement Directorate in ECIR No. 07/HIU/2017 punishable under Sections 3 and 4 of the Prevention of Money-Laundering Act, 2002 in an offence relating to the alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to INX Media for receiving foreign investment to the tune of Rs 305 crores against approved inflow of Rs 4.62 crores. In this context, the Hon'ble Supreme Court had observed that: -

"69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy."

5. However, in a later judgment rendered by a Larger Bench of the Hon'ble Supreme Court, consisting of five Hon'ble Judges in Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, the Hon'ble Supreme Court, after taking into consideration numerous previous judgments, including the judgment in the case of P. Chidambaram (supra), specifically held that:-

"53. It is quite evident, therefore, that the predominant thinking of the larger Constitution Bench, in Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , was that given the premium and the value that the Constitution and Article 21 placed on liberty--and given that a tendency was noticed, of harassment--at times by unwarranted arrests, the provision for anticipatory bail was made. It was not hedged with any conditions or limitations -- either as to its duration, or as to the kind of alleged offences that an applicant was accused of having committed. The courts had the discretion to impose such limitations (like cooperation with investigation, not tampering with evidence, not leaving the country, etc.) as were reasonable and necessary in the peculiar circumstances of a given case. However, there was no invariable or inflexible rule that the applicant had to make out a special case, or that the relief was to be of limited duration, in a point of time, or was unavailable for any particular class of offences."

6. The conclusion drawn by the Hon'ble Supreme Court in Sushila Aggarwal (supra) are reiterated in para 92 of the judgment which are as follows:-

"92. 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 CrPC:

92.1. Consistent with the judgment in Gurbaksh Singh Sibbia v. State of Punjab [(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.

92.2. 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.

92.3. Nothing in Section 438 CrPC, 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) CrPC [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.

92.4. 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.

92.5. Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the charge-sheet till end of trial.

92.6. 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.

92.7. 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.

92.8. The observations in Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] 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 had observed that :

"19. ... 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, AIR 1960 SC 1125."

92.9. 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.

92.10. The court referred to in para 92.9 above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

92.11. 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 v. Ramprasad Vishwanath Gupta, (2011) 6 SCC 189, Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379, State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21] .) This does not amount to "cancellation" in terms of Section 439(2) CrPC.

92.12. The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra, (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, (1996) 1 SCC 667 and subsequent decisions which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled."

7. The later judgment rendered by five Hon'ble Judges of the Hon'ble Supreme Court will obviously prevail over the former judgment of two Hon'ble Judges and the law, as it now stands, is that there is no restriction that the discretion of grant of pre-arrest bail under Section 438 Cr.P.C. can be exercised only in exceptional circumstances. The factors to be considered for grant of anticipatory bail to the applicant are somewhat similar to the considerations to be kept in mind for granting bail to an accused person. The only additional consideration to be kept in mind while deciding the application under Section 438 Cr.P.C. is contained in clause (iv) of Sub-section (i) of Section 438, as per which the Court has also to take into consideration whether the accusation has been made with object of injuring or humiliating the applicant by having him so arrested. Therefore, I find myself unable to accept the aforesaid preliminary objection raised by the learned AGA and the same is rejected.

8. While advancing submissions on the merit of the application, the learned counsel for the applicant has submitted that the applicant was called by the Investigating Officer and his statement under section 161 Cr.P.C. was recorded on 30.12.2016. After conclusion of the investigation, a charge sheet had been submitted way back in the year 2017. The investigation already having been concluded there appears to be no need of custodial interrogation of the applicant.

9. A supplementary affidavit has been filed on behalf of the applicant disclosing his involvement in three other cases bearing Nos. 106/2021, 202/2021 and 88/2020 all under Section 60 of the Excise Act, Police Station Karnailganj, District Gonda, which is a bailable offence and the learned counsel of the applicant has submitted that the applicant has been granted bail in all the aforesaid three cases.

10. The learned counsel for the applicant has also relied upon a judgment of the Hon'ble Supreme Court in Mahdoom Bava v. Central Bureau of Investigation, 2023 SCC OnLine SC 299, wherein the Hon'ble Supreme Court granted anticipatory bail to the appellant in a case involving serious allegations against him, on the following considerations: -

"On the strength of the aforesaid allegations, which are certainly serious in nature, the prayer of the appellants for anticipatory bail is opposed vehemently by the learned Additional Solicitor General. But in our considered view there are at least three factors which tilt the balance in favour of the appellants herein. They are:--

(i) Admittedly, the CBI did not require the custodial interrogation of the appellants during the period of investigation from 29.06.2019 (date of filing of FIR) till 31.12.2021 (date of filing of the final report). Therefore, it is difficult to accept the contention that at this stage the custody of the appellants may be required;

(ii) In the reply/counter filed before the High Court, the CBI had taken a categorical stand that the Court had merely issued summons and not warrant for the appearance of the accused. In the case of Shri Deepak Gupta, CBI had taken a stand before the Special Court that "the presence of the accused is not required for the investigation but it is certainly required for trial" and that therefore he needs to be present. Therefore, all that the CBI wanted was the presence of the accused before the Trial Court to face trial. In such circumstances, to oppose the anticipatory bail request at this stage may not be proper; and

(iii) All transactions out of which the complaint had arisen, seem to have taken place during the period 2009-2010 to 2012-2013 and all are borne out by records. When the primary focus is on documentary evidence, we fail to understand as to why the appellants should now be arrested."

11. Although the FIR states that several persons of the public were present at the spot, but when they were asked to witness the proceedings, nobody agreed for the same. Apparently, the FIR has been lodged after conclusion of the recovery proceedings when the police party reached the police station. Although in the F.I.R. lodged subsequently, it is recorded that nobody had witnessed the recovery proceedings, two persons have put their signatures at the bottom of the recovery memo regarding whom the learned AGA states that they are independent witnesses. Thus there is a serious conflict in the narration made by the police itself in the recovery memo and in the FIR registered subsequently regarding presence of independent witnesses.

12. Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the FIR was lodged on 19.07.2016 alleging that certain recoveries made from the applicant's polisher in furtherance of an information received from a mukhbir; that although the FIR mentions that a large crowd had gathered at the time of recovery, no independent person has witnessed the alleged recovery; that the investigation already stands concluded and the charge sheet has been submitted way back in the year 2017, I am of the view that the aforesaid facts are sufficient for grant of anticipatory bail to the applicant.

13. In view of the above, the anticipatory bail application of the applicant is allowed. In the event of arrest / appearance of applicant - Dharmapal Gautam Alias Bhikhari Gautam before Station House Officer / the learned Trial Court in the aforesaid case, he shall be released on bail on his furnishing a personal bond and two sureties, each in the like amount, to the satisfaction of S.H.O./Court concerned on the following conditions and subject to any other conditions that may be fixed by the Trial Court:

(i) the applicant shall not tamper with the prosecution evidence;

(ii) the applicant shall not pressurize the prosecution witnesses;

(iii) the applicant shall appear on each and every date fixed by the trial court.

Order Date - 18.08.2023

Pradeep/-