Dushyant Singh And Another vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 7908 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- APPLICATION U/S 482 No. - 1867 of 2023
 

 
Applicant :- Dushyant Singh And Another
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Pratibha Agnihotri,Ambica Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Heard Ms. Ambica Tripathi, 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, Dushyant Singh and Anoop Singh with the prayer to quash the impugned order dated 06.01.2023 passed by the Court of learned Additional Civil Judge, (S.D.)/Additional Chief Judicial Magistrate, Hardoi as well as criminal proceedings of Criminal Case No. 6498 of 2022 "State of U.P. vs. Umesh Singh and others", bearing Case Crime No. 24 of 2022, under Sections 406, 504 and 506 I.P.C., Police Station Kachhauna, District Hardoi.

Learned counsel for the applicants submits that it is a case of false implication. Admittedly the applicants are not the beneficiary of any transaction and are only the marginal witnesses of a sale deed and it is alleged against them that they have given an assurance to the seller that they will provide a cheque of Rs. 4 lacs, but the same was never given.

It is vehemently submitted that no cheque in fact was given by the applicants who are only the marginal witness of the sale deed and there is no allegation pertaining to the execution of sale deed by impersonation and the role of the instant applicants/witnesses was confined only to the identification of the parties and if any misappropriation of entrusted property has been committed, the same could only be confined to the co-accused Umesh Singh, who is the beneficiary of the sale deed allegedly executed by the opposite party no.2/informant.

It is next submitted that earlier the applicants had approached this Court by filing an Application under Section 482 Cr.P.C. No. 5919 of 2022 and by passing an order dated 01.09.2022 the applicants were directed to move an appropriate discharge application before the trial court and in pursuance of the same the applicants had moved an application for discharge which has been rejected by the trial court vide order dated 06.01.2023.

It is vehemently submitted that neither the investigating officer nor the trial court has considered the issue in right perspective and without there being any material or evidence the investigating officer has submitted charge sheet and the trial court at first has not taken pains to sift the material in order to assess the culpability of the applicants neither at the stage of issuance of process under Section 204 Cr.P.C. nor at the time of disposal of the discharge application of the applicants. Thus, the discharge application of the applicants have been rejected without application of judicial mind as even if the case of the prosecution is believed as it is, even then the ingredients of Section 406 I.P.C. could not be invoked against the applicants as there is no allegation of entrustment of any document or valuable security to them.

Learned A.G.A. on the other hand submits that after thorough investigation charge sheet has been filed and cognizance has been taken by the Magistrate and the applicants had earlier approached this Court and they did not get any relief and was only directed to move an appropriate discharge application which has been rejected by passing a reasoned order.

Having heard learned counsel for the parties and having perused the record, it appears to be an admitted case of the parties that instant applicants, namely, Anoop Singh and Dushyant Singh are the marginal witnesses of a sale deed which has been admittedly executed by the opposite party no.2 in favour of co-accused Umesh Singh. Thus, the beneficiary of the transaction is only Umesh Singh and the instant applicants are admittedly the marginal witnesses and it is in this background, it is vehemently submitted by learned counsel for the applicants that the instant applicants are not the beneficiary of any transaction.

The parameters set forth for framing of charge and discharge of an accused person (s), at the stage of Section 239 or 227 of the Cr.P.C. are no more res integra and the same has been settled by a Catena of Judgments of the Hon'ble Supreme Court and in nutshell the duty of the trial court at the time of framing of charge or discharge is to sift the material collected by the investigating officer within permissible limits in order to assess whether there is a ground for presuming that the accused has committed an offence alleged and in support of which certain material has been collected by the investigating officer so far as the cases pertaining to the charge sheet are concerned.

Thus, keeping in view the fact that the allegations of the F.I.R. has been supported by the prosecution witnesses whose statements have been recorded by the investigating officer, it could not be said that no offence is appearing or emerging from the record against the instant applicants. However, the veracity of the statement of the prosecution witnesses recorded by the investigating officer would certainly be assessed during the course of trial on the touchstone of cross-examination and the same at this stage could not be believed as 'gospel truth'.

Having considered the matter in depth, I do not find any illegality so far as the rejection of the application of the applicants for discharge is concerned. Thus, the prayer of the applicants so far as the quashment of the order, whereby their discharge request has been declined, do not requires any interference by this Court and to this extent the prayer of the instant applicants is, hereby, refused.

At this juncture, it is vehemently submitted on behalf of the applicants that the applicants are ready to participate in the trial and also to appear before the trial court for the purpose of co-operating in the trial but having an apprehension that the disposal of their bail application which they are intending to move before the trial court may take some time for disposal and in the meantime, they may be lodged in prison which will not only jeopardize their personal liberty but would also bring a bad name otherwise their good reputation.

Perusal of the order of a co-ordinate Bench of this Court dated 01.09.2022 passed in Application under Section 482 Cr.P.C. No. 5919 of 2022 when the applicants have earlier approached this Court, would reveal that an opportunity was given to the applicants to appear before the trial court for the purpose of securing bail but the apprehension of the applicants appears to be that, though the alleged offence against them are punishable with up to seven years of imprisonment even then they are apprehending that their bail applications may not be heard without sending them to prison. The apprehension of the applicants appears to be without any justification as the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 has chalked out a complete mechanism so far as the offences punishable with up to seven years of imprisonment are concerned and the same for the ready referral of the trial court is reproduced 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).

Perusal of the above placed observation of the Hon'ble Supreme Court would reveal that in appropriate cases the Supreme Court has directed that the bail plea of an accused person may also be heard without taking him in custody and it appears that while granting such a liberty the inherent intention was that an accused who has not been arrested by the police during the course of investigation should not be sent to the prison without there being any basis.

Thus, I do not see any merit in the apprehension that the applicants at the time of dispose of their bail application may be sent to prison as the offence alleged against them are punishable with up to seven years of imprisonment. In this regard the law laid down by the Hon'ble Supreme Court in 'Aman Preet Singh Vs. C.B.I. through Director : 2021 SCC OnLine SC 941' is also reproduced 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."

It is also worthwhile to mention that in the case of 'Siddharth v. State of UP : 2021 SCC OnLine SC 615' Hon'ble Supreme Court while considering the similar situation was of the view that;

"9. We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the investigating officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word "custody" appearing in Section 170 Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the investigating officer before the court while filing the charge-sheet.

10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused."

Thus, having regard to all the facts and circumstances of the case as well as the law laid placed herein-before, the instant application is finally disposed of with the direction to the applicants to appear before the trial court within 15 days from today and move an appropriate bail application with a further direction to the trial court that if such application is moved within next 15 days from today, the trial court shall be under a legal obligation to dispose of the same strictly in accordance with law laid down by Hon'ble Supreme Court in Satender Kumar Antil (supra) specifically the guidelines issued with regard to the offences which are punishable with up to seven years of imprisonment and also in the background of Aman Preet Singh (supra) and Siddharth (supra).

Order Date :- 20.3.2023

Praveen