Ankush Mohan Garg vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 8319 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. - 712 of 2023
 

 
Applicant :- Ankush Mohan Garg
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. /Prin. Secy. Home Lko. And Another
 
Counsel for Applicant :- Nadeem Murtaza,Shruti Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Learned AGA informs that he has procured complete instruction in the matter including up to date case diary and the charge sheet in this case has been filed much earlier. Thus, in the considered opinion of this Court, the anticipatory bail application moved on behalf of the applicant could be finally disposed of.

Heard Ms. Shruti Kumar, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.

The present anticipatory bail application has been moved by the accused/applicant- Ankush Mohan Garg in Case Crime No. 50/2005, under Sections 498A, 323, 504 I.P.C. and Section 3/4 D.P. Act, Police Station- Mahila Thana, 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 applicant submits that FIR of this case was lodged in the year 2005 with false and concocted facts and the Investigating Officer investigated the matter in a cursory manner and the charge sheet was filed and aggrieved by the same the applicant had approached this Court by filing a Criminal Misc. Case (under Section 482 Cr.P.C.) No. 3086 of 2007 and vide order dated 5.10.2007 passed by a Coordinate Bench of this Court further proceeding of the instant case was stayed till the next date of listing and the stay order granted by the Division Bench of this Court remain continued till 12.2.2013, on which date above mentioned Criminal Misc. Case (application under Section 482 Cr.P.C.) was dismissed and the interim order was vacated on account of non appearance of learned counsel for the applicant before the Court.

While referring to an extract of order sheet which has been placed on record, it is vehemently submitted that after having knowledge of the vacation of the stay order, the trial court has issued process of summons against the applicant on 4.11.2016 and thereafter on 1.5.2017 without service of summons the bailable warrant was issued and without service of bailable warrant non-bailable warrant has been issued contrary to the settled law propounded by the Hon'ble Supreme Court with regard to the issuance of process against the accused persons.

It is further submitted that the applicant was also not aware of the result of application under Section 482 Cr.P.C. moved by him as no communication was made in this regard by his counsel engaged at the level of High Court and it is only on this score he could not appear before the trial court earlier.

It is vehemently submitted by learned counsel for the applicant that process of the trial court and the offences wherein charge sheet has been submitted before the trial court are the offences punishable with up to 7 years imprisonment and are offshoots of matrimonial discorded relations and thus, protection from arrest be granted.

Learned AGA, on the other hand opposes the prayer of anticipatory bail application of the applicant.

Having regard to the facts and circumstances and keeping in view the order intended to be passed, the service of notice on opposite party no.2 is hereby dispensed with.

Having heard learned counsel for the parties and having perused the record, it is evident that the instant applicant was husband of opposite party no.2 and First Information Report in this case was lodged by the opposite party no.2 levelling various allegations pertaining to demand of dowry and committing cruelty in lieu of the same. Charge sheet in this case was filed in the year 2005 and thereafter charge sheet and summoning order was challenged by the applicant by filing application under Section 482 Cr.P.C. and in the year 2007 the proceedings of the case pending before the court below was stayed and the stay order remained in operation till 12.12.2013, whereon the application under Section 482 Cr.P.C. was dismissed and thereafter on 4.11.2016 process of summons was issued and thereafter process of bailable warrants and non-bailable warrants were issued without service of summons, on the applicant.

There could not be any doubt that the charged offences against the applicant are punishable with upto 7 years imprisonment.

Thus, having regard to all the facts and circumstances of the case, I do not find any good ground on the basis of which the facility of anticipatory bail may be granted to the instant applicant till the conclusion of trial and in this regard the the prayer pertaining to grant of anticipatory bail till the conclusion of trial is hereby refused.

Perusal of the record would also reveal that the charge sheet has been filed against the applicant under Sections 498A, 323, 504 I.P.C. and Section 3/4 D.P. Act and all these offences appear to be punishable with up to seven years of imprisonment.

Hon'ble Supreme Court in Satender Kumar Antill Vs. Central Bureau of Investigation and others : MANU/SC/1024/2021 had held 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 permittTheing 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.

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 DPS 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."

The directions of Hon'ble Supreme Court in Satender Kumar Antill (supra) has been again reiterated in the recent judgement in Aman Preet Singh Vs. C.B.I. through Director : 2021 SCC OnLine SC 941 by the Hon'ble Supreme Court and had held 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."

The above mentioned law reports would reveal that the Hon'ble Supreme Court has chalked out a complete mechanism for the offences punishable with upto 7 years of imprisonment in Satender Kumar Antill (supra), thus, without going into merits and demerits of the allegations and counter allegations of the parties and having regard to the law propounded by Hon'ble Supreme Court in above mentioned cases, the instant anticipatory bail application moved by the applicant is finally disposed of in terms that the applicant may move appropriate regular bail application before the trial court within 30 days from today and if such an application is moved within the period stipulated herein-before, the trial court shall be under an obligation to dispose of the same in accordance with the law laid down by Hon'ble Supreme Court in Satender Kumar Antill (supra) and Aman Preet Singh (supra).

Having regard to the special circumstances mentioned herein-above and in view of the law propounded by Hon'ble Supreme Court in Nathu Singh Vs. State of U.P. and others; 2021(6) SCC 64, for 30 days from today in the event of arrest of the applicant, namely, Ankus Mohan Garg involved in the above noted case, he shall be released forthwith on anticipatory bail on his furnishing a personal bond of Rs.50,000/- and two sureties each in the like amount to the satisfaction of the Station House Officer of the Police Station concerned/ Investigating Officer with the following conditions:-

(1) The applicant shall make himself available for interrogation or for discovery of any fact by a police officer as and when required;

(2) The applicant 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 them from disclosing such facts to the Court or to any police officer;

(3) The applicant shall not leave the country without the previous permission of the Court.

(4) The applicant shall deposit his passport with the trial court and if he has not been issued any passport, an affidavit in this regard shall be filed before the trial court.

If the applicant will not follow the terms of this order set-forth herein-before, after passage of 30 days he shall not be entitled for any benefit of the instant order.

Order Date :- 22.3.2023

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