Aanchal Sharma And Another vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 3944 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD, BENCH AT LUCKNOW
 
Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 155 of 2023
 

 
Applicant :- Aanchal Sharma and Vivek Shukla
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.And 3 Others
 
Counsel for Applicant :- Ravendra Pratap Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard learned counsel for the applicants and learned A.G.A. for the State.

2. Apprehending arrest in case crime No.0038 of 2022 under sections 420, 406, 467, 468, 471, 120-B I.P.C., P.S. Bagru, district Jaipur (West) Rajasthan, present anticipatory bail has been filed by the applicants Anchal Sharma and Vivek Shukla for pre- arrest transit bail.

3. Learned counsel for the applicants submits that the first information report has been lodged by Umesh Tyagi, respondent No.4 with the allegation that the applicants are running through their institute 'Vidya Foundation' different courses. It is alleged that the complainant has given Rs.1 lakh through cheque and the balance Rs.70,000/- through NEFT to the institute of the applicants for undergoing D.Pharma course, but the applicants have neither provided education material nor held any examination and thus the applicants have allegedly cheated him.

It is submitted on behalf of the applicants that the applicants who are trustee and Managing Trustee of Uma Shanker Shukla Memorial trust have opened its offices in different parts of the country including in Jaipur, Rajasthan, where the first information report has been registered. They are living in Lucknow.

The applicants' counsel submits that the complainant has given a cheque dated 27.12.2019 for Rs.1 lac and the balance amount of Rs.70,000.- was promised to be paid within time, i.e. 30.5.2019. However, the complainant has transferred balance of Rs.70,000/- through NEFT in the account of Vidya Foundation' on 20.5.2020, instead of due date, i.e. 30.5.2019. The complainant has also not furnished necessary documents for admission. It is submitted that due to non-payment of admission fee and the documents, in time, as per terms and conditions of the agreement, the admission of the informant was not processed and the fee deposited by the candidate was forfeited.

The applicants? counsel submits that the applicants are ready to take recourse to law at Jaipur, however, it is submitted that they may be granted interim protection by way of transit bail so as to enable the applicants to approach appropriate court at Jaipur. It is submitted that in case the applicants go to Jaipur, they may be arrested by the police.

Learned counsel for the applicants further submits that he is praying for transit bail for a short period and thereafter, the applicants shall appear in the concerned Court at Jaipur and take recourse to appropriate remedy provided under law.

In support of his contention, learned counsel has relied on the judgment of this Court at Allahabad passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 5286/2022 "Amita Garg and six others Vs. State of U.P. and three others". Emphasis is on para 15 which is extracted below:-

"15. In a recent judgment the Bombay High Court in case of Nikita Jacob Vs. The State of Maharashtra (Anticipatory Bail Application No. 441 of 2021 decided on 17.02.2021) the Bombay High Court reiterated and adopted the same principle as has been laid down in the case of Teesta Atul Setalvad (supra) and passed the following order:-

"1. Thus, pending reference also reliefs were granted by this Court in exercise of powers u/s 438 of Cr.P.c. As stated above, the Division Bench has also granted such relief. The decision of Dr. Augustine Francis Pinto and another (supra) and Sandeep Lohariya (supra) was considered by this Court, as stated above. The co-accused who is apprehending arrest in this case, is granted protection by Aurangabad Bench of this Court on 16th February 2021. The applicant has to make arrangements to seek appropriate reliefs in other State. Since the applicant would be ultimately approaching the Court having jurisdiction, it would not be appropriate to make any observation on the merits of the case. In the light of factual matrix of the case protection under Section 438 of Cr.P.C can be granted to the applicant for temporary period of three weeks.

2. Hence, I pass following order:

(i) In the event of arrest of applicant in connection with C.R. No. 49 of 2021 registered at Special Cell, New Delhi, the applicant be released on bail on executing P.R Bond in the sum of Rs. 25,000/- with one or more sureties in the like amount.

(ii) This protection is granted for a period of three weeks from today to enable the applicant to approach the competent court for seeking appropriate relief ;

(iii) Anticipatory Bail Application is disposed of."

Learned counsel for the applicants has further relied on the judgment of this Court passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1669/2022 "Ajay Agarwal Vs. State of U.P. and others". Emphasis is on para 5, 6, 7, 8 and 9 which is extracted below:-

"5. Section 438 of the Code of Criminal Procedure specifies direction for grant of bail to a person apprehending arrest and moreover confers power only upon the High Court and the Court of Sessions to grant anticipatory or transit bail if they deem fit. At the point when an individual has the motivation to accept that he might be arrested on an allegation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a grant of anticipatory bail. The Court may, as it thinks fit, direct that in case of such arrest, he will be released on anticipatory bail.

6. Nonetheless, transit anticipatory bill is different from ordinary bail. Ordinary bail is granted after arrest, releasing the accused from custody while anticipatory bail is granted in the anticipation of arrest i.e., it precedes detention of the accused and is effective immediately at the time of the arrest. In plain words, when an accused is arrested in accordance with the order of the court and whereas the accused needs to be tried in some other competent court having jurisdiction in the aforementioned matter, the accused is given bail for the transitory period i.e., the time period required for the accused to reach that competent court from the place he is arrested in.

7. It is to be noted that transit bail is protection from arrest for a certain definite period as granted by the Court granting such transit bail. The mere fact that an accused has been granted transit bail, does not means that the regular court, under whose jurisdiction the case would fall, would extend such transit bail and would convert such transit bail into anticipatory bail. Upon the grant of transit bail, the accused person, who has been granted such transit bail, has to apply for anticipatory bail before the regular court.

8. The regular court, would consider such anticipatory bail, on its own merits and shall decide such anticipatory bail application. Therefore, it could be easily said that transit bail is a temporary relief which an accused gets for certain period of time so that he/she could apply for anticipatory bail before the regular court.

9. In the judgment of the Bombay High Court in the case of Teesta Atul Setalvad & Anr. Vs. State of Maharashtra & Ors. (vide Anticipatory Bail Application No. 14 0f 2014, decided on January 31, 2014) it was held that the High Court of one State can grant transit bail in respect of a case registered within the jurisdiction of another High Court in exercise of power under Section 438 of the Code of Criminal Procedure. It appears from the said judgment that there is no fetter on the part of the High Court in exercising the power under Section 438 of the Code in granting anticipatory bail for a limited period to enable the applicant to move the appropriate Court as the gravity of pre-trial arrest and the loss of liberty of the individual cannot be compromised on the anvil of the powers, competence and/or jurisdiction of the Court. The relevant excerpt of the judgment is quoted hereinbelow:-

"7. In the case of N.K. Nayar (supra) the Division Bench of the Bombay Court has held that if the arrest is likely to be affected within the jurisdiction beyond High Court, then the concerned person may apply to the High Court for anticipatory bail even if the offence is committed in soma state. However, the Division Bench in the said case while exercising power under Section 438 of the Code, granted anticipatory bail tor a peri0d or one month so as to enable the applicants to. appropriate Court. Thus, the Division Bench of this Court has considered the gravity of pre-trial arrest and loss of liberty of an individual it a person is likely to be falsely implicated in any other state and therefore, in the case of N.K. Nayar (supra), the Division Bench in the concluding para has granted relief of anticipatory bail for a limited period.

8. Generally the powers f High Courts in the cases of anticipatory bail are limited to its territorial jurisdiction and the power cannot be usurp by disregarding the principle of territorial jurisdiction, which is in the interest of the comity of the Courts. However, temporary relief to protect liberty and to avoid immediate arrest can be given by this Court.

9. Thus, in view of the ratio laid down in the case of N.K. Nayar (supra), I grant transit bail for four weeks so as to enable the applicant to approach appropriate Court in Gujarat, on the terms and conditions imposed in the interim order dated 10th January, 2014, passed by this Court. This order granting transit bail shall remain in force till 28.02.2014. The application is disposed of."

4. In view of the law enunciated in the above referred cases, there is no fetter on the part of the High Court in granting a transit anticipatory bail to enable the applicants to approach the Courts including High Courts where the offence is alleged to have been committed and the case is registered. There is no doubt that the right to liberty is enshrined in Part-III of the Constitution of India and such rights cannot be impinged except by following procedure established by law.

5. In view of the above, this Court directs that in the event of arrest, the applicants shall be released on transit bail on executing personal bond of Rs.50,000/- with two sureties of the like amount;

This protection is granted for a period of 15 days from the date of this order to enable the applicants to approach the competent Court for seeking appropriate relief.

6. Accordingly, the instant anticipatory bail application is disposed of.

Order Date :- 8.2.2023

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