Kishan Singh vs State Of U.P. And Another
2023 Latest Caselaw 25276 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:180902
 
Court No. - 71
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7583 of 2023
 
Applicant :- Kishan Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Vikrant Rana
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shekhar Kumar Yadav,J.

1. Heard Sri Vikrant Rana, learned counsel for applicant and Sri Thakur Azad Singh, learned A.G.A. for the State as well as perused the material available on record.

2. The present application for anticipatory bail has been filed by the applicant for protection in regard to Case No.2639 of 2015 (State Vs. Rahul and others) arising out of Case Crime No.472 of 2014, under Sections 364-A, 368, 120-B, 471 I.P.C., P.S.- Khekda, District- Baghpat.

3. As per prosecution story, informant Shyamlal Mittal lodged the first information report on 08.08.2014 at about 15:40 at the police station Khekra against unknown persons to the effect that in the morning of 08.08.20214 his younger brother Praveen Mittal had left his house at around 10:40. After leaving at 07:30, Khekra, he had gone to his kiln located at Bada Gaon Road and at about 11:00 he had returned to his home in Delhi in his Santro car, but since then he is not traceable neither on his phone nor in any other way. No one is able to contact him.

4. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case; the applicant is a farmer aged about 67 years. The applicant is not named in the first information report. During the investigation, name of the applicant and other co-accused came to light. He submitted that the applicant has no concerned with the alleged incident and no person has been kidnapped by him. He submitted that the applicant was in jail since 23.08.2014 to 13.10.2014 in another case being Case Crime No. 81 of 2014, under Sections 147, 148, 149, 307, 302, 120B, 504 IPC, Section 7 of Criminal Law Amendment Act and Section 3(2)5 SC/ST Act, P.S.-Chandi Nagar, District Baghpat. Learned counsel for the applicant submitted that in the second statement of the victim Praveen Kumar Mittal recorded under Section 161 Cr.P.C. there are fifteen accused persons except the applicant, it is not disclosed the conspiracy of hatching of kidnapping of the victim. He has been falsely implicated in this case and during investigation Section 364-A was added. He further submitted that all the accused persons except the applicant, have been granted regular bail by the co-ordinate Bench of this Court. Learned counsel for the applicant further submitted that applicant has apprehension of imminent arrest and in case, applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial.

5. On the other hand, learned A.G.A. has submitted that there is sentence of death or life imprisonment and fined for the offence under Section 364-A I.P.C. as such present anticipatory bail application is bared under Section 438 Sub-Section 6(b) Cr.P.C. as U.P. Amendment Act, 1977.

6. In reply to the submission of learned A.G.A., learned counsel for the applicant has relied upon paragraph no.18 of the judgment of the Apex Court in the case of Gurbaksh Singh Vs. State of Punjab reported in AIR 1980 SC 1632, which reads as under:-

"According to the sixth proposition framed by the High Court, the discretion under Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless."

7. He has further relied upon the paragraph no.8 of the judgment of the Karnataka High Court in the case of I.Y. Chanda Earappa Vs. State of Karnataka reported in ILR 1989 KAR 2882, in which following question arose for consideration:-

"1. xxxxxxx

(1) Whether in a petition presented under Section 438 of the Code to the High Court or the Court of Sessions, the court has no power to direct the grant of bail, if the petitioner apprehends his arrest by the police on the allegation that he had committed an offence of murder?"

(2) xxxxxxx

2. xxxxxxx

8. In our opinion, the contention urged by the learned counsel for the petitioner is unexceptionable. In fact, the precise question, namely, as to whether the limitation imposed in Section 437(1)(i) of the Code to the effect that a Magistrate should not grant bail where there are reasonable grounds to believe that the accused is alleged to have committed any of the non-bailable offences specified therein would also control the exercise of power under Section 438 of the Code, was the subject matter for consideration by the Supreme Court in the case of Gurbaksh Singh, (1980 Cri LJ 1125). In the said case, the Supreme Court was considering the correctness of the view taken by a Full Bench of the Punjab High Court, to the effect that (at pp. 1131-32 of Cri LJ) :

(1) the power under Section 438 of the Code is not unguided or uncanalised but all the limitation imposed in the preceding Section 437 are implicit therein and must be read into Section 438 of the Code;

(2) the discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the court at that very stage is satisfied that such a charge appears to be false or groundless.

The Supreme Court emphatically ruled that on both the points the view taken by the Full Bench of the Punjab High Court was erroneous. The relevant portion of the judgment reads (at pp. 1134, 1135-36 of Cri LJ) :

"13. ........ The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein, like those evolved by the High Court or canvassed by the learned Additional Solicitor General. Our answer, clearly and emphatically, is in the negative. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.

xxxx xxxx xxxx xxxx

18. According to the sixth proposition framed by the High Court, the discretion under Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the state of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed "a non-bailable offence." We see no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1) of the Code. That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence "shall not be so released" if there appears to be reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If it was intended that the exception contained in Section 437(1) should govern the grant of relief under Section 437(1), nothing would have been easier for the legislature than to introduce into the letter section a similar provision. We have already pointed out the basic distinction between these two sections. S. 437 applies only after a person, who is alleged to have committed a non-bailable offence, is arrested or detained without warrant or appears or is brought before a court. Section 438 applies before the arrest is made and in fact, one of the pre-conditions of its application is that the person, who applies for relief under it must be able to show that the has reason to believe that "he may be arrested", which plainly means that he is not yet arrested. The nexus which this distinction bears with the grant or refusal of bail is that in cases falling under Section 437, there is some concrete data on the basis of which it is possible to show that there appear to be reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Section 437(1), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the First Information Report. In the majority of cases falling under Section 438 , that data will be lacking for forming the requisite belief. If at all the conditions mentioned in Section 437 are to be read into the provisions of Section 438 the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Section 438(1) shall have to be read as containing the clause that the applicant "shall not" be released on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life." In this process one shall have overlooked that whereas, the power under Section 438(1) can be exercised if the High Court or the Court of Session "thinks fit" to do so,Section 437(1) does not confer the power to grant bail in the same wide terms. The expression 'if it thinks fit' which occurs in Section 437(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for re-writing Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session, but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal."

In our opinion, the above judgment of the Supreme Court is a complete answer in the negative to the first question arising for consideration in this case."

8. Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that the victim Praveen Kumar Mittal was kept at a tube well where a ransom of Rs.5/- crore was demanded from his mobile phone to his brother Shyamlal Mittal and the victim Praveen Kumar Mittal was released after paying ransom to the kidnappers. The fact that the applicant was involved in the said kidnapping and conspiracy has also come to light during the investigation. He further submitted that charge sheet has been submitted on 24.04.2015 and N.B.W. was issued on 22.06.2017 as well as proceedings under Section 82 Cr.P.C. has been initiated against the applicant on 04.01.2019, the applicant has never appeared before the court below and deliberately he is absconding. In support of his contention, he has placed reliance upon the judgment of the Apex Court passed in the case of Lavlesh Vs. State (NCT of Delhi), 2012 (8) SCC 730, therefore, keeping in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

9. From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant.

10. Having heard learned counsel for the applicants and upon perusal of material brought on record as well as complicity of accused and also judgment of the Apex Court in the case of Prem Shankar Prasad vs. State of Bihar, 2021 SCC OnLine SC 955, in which the Hon'ble Apex Court has opined that if coercive action has been initiated against the accused/applicant, then the anticipatory bail is not maintainable, therefore, there is no justification for granting anticipatory bail to the applicant. Accordingly, the prayer for grant of anticipatory bail is hereby refused.

11. Accordingly, this application under Section 438 Cr.P.C. is dismissed. Applicant is advised to move regular bail application before the appropriate forum and if such application is given, the court below shall consider and disposed of the bail application expeditiously in accordance with law.

Order Date :- 19.9.2023

Krishna*