Smt Munni Devi And 3 Others vs State Of U.P. And Another
2023 Latest Caselaw 23772 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:174676
 
Court No. - 73
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9783 of 2023
 

 
Applicant :- Smt Munni Devi And 3 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Sunil Kumar,Raghvendra Singh
 
Counsel for Opposite Party :- G.A.,Dharmendra Kumar Chaubey
 

 
Hon'ble Nalin Kumar Srivastava,J.

1. Heard learned counsel for the applicants as well as learned AGA for the State and perused the material available on record.

2. This application for anticipatory bail has been filed by applicants- Smt. Munni Devi, Smt. Alka Gupta, Smt. Seema Gupta & Rahul Gupta in connection with Case Crime No. 159 of 2014 (Criminal Complaint No.225 of 2015), under sections 420, 467, 468, 471 IPC, Police Station Jasrana, District Firozabad.

3. The prosecution story as unfolded in the F.I.R. is that applicant no.1 executed a registered lease deed dated 09.11.2011 in favour of applicant nos.2 & 3 in respect of some land exceeding her rights over that land for the purpose of obtaining allotment of petrol pump in their favour whereas the informant was the real owner of the aforesaid land. A civil suit was filed in this regard by the informant and a notice was also sent to the opposite party for the cancellation of the aforesaid lease deed but no attention was paid to that. F.I.R. was lodged on 13.04.2014 and investigation started. After investigation, a final report was submitted by the I.O. of the case but the same was rejected on a protest petition filed by the informant and subsequently, the said protest petition was treated as a criminal complaint and a summoning order was passed against the applicants by the court of Additional Chief Judicial Magistrate, Shikohabad, Firozabad to face trial under Sections 420, 467, 468, 471 I.P.C.

4. It has been submitted by the learned counsel for the applicants that applicants are innocent and they have apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against them. Allegations levelled against the applicants are false. After investigation, final report has been submitted in the matter. In case applicants are granted anticipatory bail, they shall not misuse the liberty of bail and would obey all conditions of bail.

5. It is further submitted that no offence has been committed by the applicant no.1 and she had a legal right to execute the lease deed as she was the owner of the land aforesaid. It is further submitted that a civil suit in respect of the present matter had already been filed by the informant of the case, which is still pending before a competent civil court and just in order to convert a civil dispute into a criminal matter with mala fide intention, the F.I.R. in this matter was lodged. It is next submitted that no offence was found against the applicants during the course of investigation and that is why, the investigation culminated into a final report. It is further submitted that the applicants and co-accused, Manoj had filed Criminal Misc. Writ Petition No.11654 of 2014 challenging the F.I.R. of the present case, which was disposed of with a certain direction vide order dated 14.07.2014 and the recall application was also dismissed by this Court on 14.11.2014. It is further submitted that the summoning order passed by the court of Additional Chief Judicial Magistrate, Shikohabad, Firozabad dated 02.02.2016 was challenged by way of a Criminal Revision No.33 of 2016 and the matter was remanded to pass fresh order on the point of the summoning order, after setting aside the summoning order dated 02.02.2016 and subsequently, a fresh summoning order dated 19.03.2021 was passed. It is further submitted that without issuing summons or bailable warrants against the applicants, non-bailable warrants were issued by the trial court. However, a discharge application was filed on 04.03.2022 by the applicants which was rejected by the trial court dated 16.04.2022. It is next submitted that Criminal Misc. Application U/s 482 Cr.P.C. No.12547 of 2022 was also moved by the applicants before this Court wherein an interim protection was granted to the applicants vide order dated 29.07.2022, which was extended from date to date but due to non listing of the matter, case could not be taken up by this Court and interim order could not have been extended. It is also submitted that during the pendency of the aforesaid application u/s 482 Cr.P.C., the trial court proceeded with the matter in view of law laid down by the Hon'ble Apex Court in case of Asian Resurfacing of Road Agency Pvt. Ltd. and another Vs. Central Bureau of Investigation, (2018) 16 SCC 299 and on 17.06.2022, an order was passed to issue process under Section 82 Cr.P.C. against the applicants. It is next submitted that a withdrawal application for the aforesaid proceedings U/s 482 Cr.P.C. had already been moved and it is fairly submitted at the bar that the court may record the statement of the counsel that the aforesaid proceeding under Section 482 Cr.P.C. is going to be withdrawn whenever it is listed. It is further submitted that the present dispute is purely of civil nature and as such, the applicants are entitled for anticipatory bail.

6. Learned A.G.A. as well as learned counsel for the informant have opposed the prayer for anticipatory bail. It has been submitted that with an intention to make wrongful gain in favour of her sons and daughter-in-law, applicant no.1 had executed the lease deed without any authority and title grabbing the land of the informant. It is next submitted that they are proclaimed offenders and in view of the same, they are not entitled for anticipatory bail.

7. In the present case, it is admitted case of the prosecution that civil suit in respect of the alleged lease deed executed in an unauthorized way by applicant no.1, is still pending before the competent civil court and the fate of the lease deed is to be still decided by the civil court and the matter is subjudice. So far as the issue of non availability of the relief of anticipatory bail to the present applicants by virtue of their being proclaimed offenders is concerned, process under Section 82 Cr.P.C. is said to be issued on 17.06.2022 against the present applicants whereas an application U/s 482 Cr.P.C. No.12547 of 2022 was pending before this Court and the trial court was not justified at all to pass an order for the issuance of coercive process against the present applicants during the pendency of the application under Section 482 Cr.P.C. before this Court.

8. Reliance has been placed upon the judgment of the Hon'ble Apex Court in case of Prem Shankar Prasad Versus State of Bihar and Another, 2021 SCC OnLine Supreme Court 955 wherein grant of anticipatory bail to a proclaimed offender has been prohibited. In the case of Lavesh Vs. State (NCT of Delhi) (2012) 8 SCC 730, the Hon'ble Apex Court has held as under:-

"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled to the relief of anticipatory bail." A conclusion may be derived from the aforesaid notion of law that to move an application for anticipatory bail by a proclaimed offender is not barred under Section 438 of Cr.P.C. and normally anticipatory bail should not be given to a proclaimed offender but if he succeeds to show his bona fide as to in what circumstances, the punitive process was issued against him and if the compelling circumstances are justified, his prayer for anticipatory bail may be considered although normally a proclaimed offender cannot be granted anticipatory bail.

9. In the totality of the circumstances of this case, it is found that the applicants were not deliberate absconders and they were engaged in taking legal protection and in the intervening period, punitive process was ordered to be issued against them. So far as the pendency of application under Section 482 Cr.P.C. is concerned, a submission has been made by the learned counsel for the accused applicants at the bar that the said application is going to be withdrawn and an application along with affidavit has already been moved before this Court in this respect.

10. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

It has been further held by the Hon'ble Apex Court that 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, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that 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.

11. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicants and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicants till conclusion of trial in the matter.

12. The anticipatory bail application is allowed.

13. In the event of arrest of the applicants in the aforesaid case crime, they shall be released on anticipatory bail on their furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :-

(i) 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(ii) The applicants shall not pressurize/ intimidate the prosecution witness.

(iii) The applicants shall not commit an offence similar to the offence of which they are accused, or suspected, of the commission of which they are suspected.

(iv) The applicants shall not leave India without prior permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. concerned.

14. In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicants in accordance with law.

Order Date :- 29.8.2023

Shivangi