Allahabad High Court
Veer Singh And 3 Others vs State Of U.P. And Another on 31 May, 2024
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Neutral Citation No. - 2024: AHC:100311
Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4767 of 2024
Applicant :- Veer Singh And 3 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ajay Sengar, Gunjan Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
1. Heard Ms. Gunjan Yadav, learned counsel for the applicants and Mr. Thakur Azad Singh and Mr. Ved Mani Tiwari, learned Additional Government Advocates for the State.
2. The instant 2nd Anticipatory Bail Application has been moved by the applicants with the prayer that applicants herein be released on anticipatory bail during pendency of trial in respect of the impugned Case No.0015 of 2020 (State of Uttar Pradesh Vs Veer Singh and others) arising out of Case Crime No. 0618 of 2016, under Sections 147, 148, 149, 323, 504, 506, 324, 325, 308 IPC, P.S. Kotwali Kalpi, District Jalaun, pending before the learned CJM, Jalaun at Orai.
3. The 1st Anticipatory Bail application moved by the applicants was heard and disposed of vide order dated 20.12.2023 with the following directions:-
"1. This application has been moved on behalf of the applicant seeking anticipatory bail in Case Crime No. 0618 of 2016, under Sections 147, 148, 149, 323, 504, 506, 324, 325, 308 IPC, P.S. Kotwali Kalpi, District Jalaun during the pendency of trial.
2. Heard Ms Gunjan Yadav, learned counsel for the applicants as well as learned A.G.A. for the State and perused the record.
3. It has been argued by the learned counsel for the applicants that applicants are innocent and they have apprehension of their arrest in the above-mentioned case, whereas there is no credible evidence against them. Allegations levelled against the applicants are false. The investigation of the case has been completed and charge-sheet has been filed and cognizance has been taken by the Court concerned.
4. It is further submitted that during investigation, the applicants have been fully cooperative. It is further submitted that the alleged offences are punishable with the imprisonment of maximum period of seven years. Applicants have no criminal history. In case applicants are granted anticipatory bail, they shall not misuse the liberty of bail and would obey all conditions of bail.
5. Learned A.G.A. opposed the prayer for anticipatory bail.
6. In this matter, as is evident from the record, offences levelled against the applicants are punishable with the imprisonment upto seven years. After completion of investigation, charge sheet has been submitted and cognizance has also been taken by the Court concerned.
7. In Sushila Aggarwal and others Vs State (NCT ofDelhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the controversy finally by holding the 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, likelihood 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.
8. 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 not a fit case for anticipatory bail to the applicants till the end of trial. The prayer made in the application is refused.
9. However, it is directed that police and learned trial Court shall strictly adhere with the directions in regard to arrest issued by Hon'ble Supreme Court in the cases of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273 and Satender Kumar Antil Vs CBI and another, 2022 SCC OnLine SC 825. In cases where maximum punishment is upto seven years, arrest and jail is not necessary. Trial Court and investigation agency shall take care of the directions issued in the said judgements. It is further observed that the bail application of the applicants, if moved, shall be considered and decided by the Court concerned in terms of the law laid down by the Hon'ble Apex Court in Satender Kumar Antil (Supra).
10. It is further directed that the learned court concerned, while considering the bail application of the applicants in the light of Satender Kumar Antil case (supra), shall pass an order strictly in compliance of the directions given in the aforesaid judgment by the Hon'ble Supreme Court, in letter and spirit.
11. The application stands disposed of accordingly."
4. Record reveals that in compliance of the said order, applicants moved their bail application under Section 439 Cr.P.C. in terms of the guide lines issued by the Hon'ble Apex Court in Satendra Kumar Antil Vs Central Bureau of Investigation and another (2021 (10) SCC 773, which came to be rejected by the learned CJM, Jalaun at orai vide its order dated 29.03.2024 holding that the bail application moved by the applicants through counsel is not maintainable.
5. Learned counsel for the applicants while drawing attention of this Court towards the order of this Court dated 20.12.2023 and the order dated 29.03.2024 passed by the Chief Judicial Magistrate, Jalaun submits that this Court while disposing of the anticipatory bail application of the applicants had directed the trial court to dispose of bail application of the applicants in light of the law laid down by the Hon'ble Supreme Court in Satenddra Kumar Antil (supra), however, the trial court has dismissed the application of the applicants on the ground that since the applicants have not submitted themselves to the custody of the trial court, therefore, the bail application moved through counsel is not maintainable as they are not in the custody of the court.
6. It is contended by learned counsel for the applicants that in view of the judgement of the Hon'ble Supreme Court passed in Satendra Kumar Antil (supra), whereby it is provided that if two conditions are satisfied i.e. the accused is not arrested during investigation and secondly has cooperated throughout in the investigation including appearing before Investigating Officer whenever called for the offences, which are categorized in 'A' i.e. offences punishable with imprisonment upto 7 years of imprisonment, ordinary summons shall be issued and if on their non appearance, non bail warrant may be issued, but the same may also be cancelled and the bail application of such accused person on his appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided.
7. It is further submitted that the case of the applicants is covered in the cases provided in the category 'A' of the judgement of Satendra Kumar Antil (supra). It is further submitted that the Chief Judicial Officer, without properly going through the judgement of the Hon'ble Supreme Court passed in Satendra Kumar Antil (supra) has passed the order on his 'whims and caprice' while it was specifically provided in Satendra Kumar Antil (supra) that there is no need to surrender for the purpose of getting bail under Section 439 Cr.P.C. for the offences, which are categorized in category 'A' and thus it is submitted that a suitable direction be given to the court below for properly disposing of the bail application of the applicants. It is argued that the present offence is punishable upto seven years, therefore, the presence of the applicants is not required at the time of hearing of bail application. The trial court should have decided the bail application which has been filed through counsel without pressing personal presence of applicants before it.
8. Learned A.G.A. has raised a primary objection by contending that the application has rightly been rejected by the court below as the same has been filed under Section 439 Cr.P.C., which empowers the Court to direct release of a person on bail, who is accused of an offence and in custody. The applicants are not in custody and, therefore, their application under Section 439 Cr.P.C. was rightly dismissed as not maintainable. It is further submitted that though the word "custody" has been interpreted in a broad sense, still, at least physical presence of the accused in the Court is necessary for consideration of an application under Section 439 Cr.PC.
9. The Hon'ble Supreme Court in Satendra Kumar Antil (supra) issued certain guidelines, which is reproduced as under:
"1. Application for intervention is allowed.
2. We have been provided assistance both by Mr. S.V. Raju, learned Additional Solicitor General and Mr. Sidharth Luthra, learned senior counsel and there is broad unanimity in terms of the suggestions made by learned ASG. In terms of the suggestions, the offences have been categorized and guidelines are sought to be laid down for grant of bail, without fettering the discretion of the courts concerned and keeping in mind the statutory provisions.
"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 charge sheet (Siddharth v. State of U.P., 2021 SCC OnLine SC 615)
CATEGORY A
After filing of charge sheet/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 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 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.
7. The suggestions of learned ASG which we have adopted have categorized a separate set of offences as "economic Offences" not covered by the special Acts. In this behalf, suffice to say on the submission of Mr. Luthra that this Court in Sanjay Chandra vs.CBI, (2012) 1 SCC 40 has observed in para 39 that in determining whether to grant bail both aspects have to be taken into account:
a) seriousness of the charge and
b) severity of punishment.
Thus, it is not as if economic offences are completely taken out of the aforesaid guidelines but do form a different nature of offences and thus the seriousness of the charge has to be taken into account but simultaneously, the severity of the punishment imposed by the statute would also be a factor.
8. We appreciate the assistance given by the learned counsels and the positive approach adopted by the learned ASG.
9. The SLP stands disposed of and the matter need not be listed further.
10. A copy of this order be circulated to the Registrars of the different High Courts to be further circulated to the trial Courts so that the unnecessary bail matters do not come up to this Court.
11. This is the only purpose for which we have issued these guidelines, but they are not fettered on the powers of the Courts.
12. Pending applications stand disposed of."
10. The aforesaid directions of Hon'ble Supreme Court in Satendra Kumar Antil (supra) has been again reiterated in the judgement in Aman Preet Singh Vs CBI, 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 Vs 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."
(Emphasis mine)
11. Again, the Hon'ble Supreme Court in Siddharth Vs State of UP, 2021 SCC OnLine SC 615 opined as follows:
"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."
12. After going through the above quoted case laws of the Hon'ble Supreme Court, it is thus very much clear that on completion of two conditions mentioned in Satendra Kumar Antil (Supra) i.e. accused is not arrested during investigation and, secondly, has cooperated throughout in the investigation including appearing before Investigating Officer whenever called, a mechanism has been provided for the offences punishable with imprisonment upto 7 years of imprisonment for offences placed in category in 'A' and perusal of the procedure/mechanism provided in category 'A' would reveal that at the first instance after filing of the charge sheet/complaint and after taking of cognizance, summons will be issued and that too with the permission to appear through the lawyer and if such an accused is not appearing despite service of summons then bailable warrants should be issued for their physical appearance and on their failure to appear despite issuance of bailable warrants, non bailable warrants may be issued subject to the condition that non bailable warrants may be cancelled or converted into bailable warrants/summons without insisting physical presence of the accused person(s), if any application is moved on behalf of the accused persons for cancellation of the warrants. However, it is in clause (e) of the paragraph 3 pertaining to the category 'A' cases, it is provided that the bail application of such accused persons on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is finally decided.
13. It is the admitted position that the applicants herein have well co-operated during investigation and also furnished their securities before the Investigating Officer during Investigation and there is no objection that they have not cooperated during investigation, thus, have complied the two conditions referred in judgement of Apex Court in Satendra Kumar Antil (supra) and therefore, their case is also covered under Category 'A' wherein a mechanism has been provided for the offences punishable with imprisonment up to 7 years of imprisonment to be adhered by all courts.
14. Thus, the above mentioned law reports would reveal that the Hon'ble Supreme Court has set a complete mechanism for the offences punishable with upto 7 years of imprisonment in the above Satender Kumar Antil (supra), Aman Preet Singh, (supra) and Siddharth (supra). Moreover, when an accused appear before the trial Court through counsel for grant of bail under Section 439 Cr.P.C. for the offences punishable upto 7 years of imprisonment or less, and he has fully co-operated during investigation and has not been arrested while submitting the charge sheet by the Investigating Officer, they can be deemed to be under custody of Court and their application in the said offences under Section 439 Cr.P.C. moved through counsel, cannot be solely rejected on the technical ground that it is not maintainable as he has not submitted himself either to the custody of the court or he has not been arrested by the police and in the circumstances, it is left to the court to consider the said request of applicants as per the said guidelines and principles. On appearance of accused through counsel before Court would always amount to deemed custody and, thus, in terms of the above judgements, their bail application was required to be decided, consequent upon their appearance through counsel before the court on issuance of the process, without the applicants being taken into physical custody or by granting them interim bail till the disposal of their bail application.
15. Having considered the submissions of learned counsel for the applicants and after going through the record of the case as well as the case laws dealt herein above, it is crystal clear that if the conditions mentioned in the order of the Hon'ble Supreme Court in Satendra Kumar Antil (supra) is fulfilled, the physical presence of the accused person to the custody of the court is not required for considering of their bail under Section 439 Cr.P.C. for the offences enumerated in Category 'A'.
16. Accordingly, the present 2nd Anticipatory Bail Application is disposed of with the direction to the applicants to move a fresh bail application before the court concerned under Section 439 Cr.P.C. within 15 days from today and in case the fresh bail application is moved by the applicants, the court concerned shall dispose of the same without insisting the applicants to submit themselves to the custody of the court, strictly in accordance with law laid down by the Apex Court in the above mentioned cases.
Order Date :- 31.5.2024
Ajeet
(Shekhar Kumar Yadav, J.)
