Sagar Vishvkarma vs State Of U.P.
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Allahabad High Court

Sagar Vishvkarma vs State Of U.P. on 16 April, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:55869
 
Court No. - 67
 

 
Case :- CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No. - 2859 of 2025
 
Applicant :- Sagar Vishvkarma
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Raj Kumar Pandey,Ram Kumar Pal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Chandra Dhari Singh,J.
 

1. Instant application filed on behalf of applicant Sagar Vishvkarma under Section 482 of B.N.S.S seeking anticipatory bail in Case Crime No. 35 of 2025, under Sections 108, 351 (2) of B.N.S., 2023, Police Station Sakaldeeha, District Chandauli. 

2. Learned counsel appearing on behalf of applicant submitted that applicant is innocent and he has not committed any offence as alleged in the first information report. It is further submitted that applicant as well as deceased was in love and applicant wanted to marry her. It has been falsely alleged that applicant has threatened the deceased that if she will not marry with him then he will not permit or allow her to marry with any other person. It is also submitted that it is false allegation that he has ever threatened the victim/deceased that she will face dire consequences if she will try to marry with any other person. Learned counsel appearing on behalf of applicant submitted that on the basis of some whatsapp chat between the applicant and the victim as well as some photographs in the mobile of the applicant, the police has connected the applicant in the instant commission of crime for the offence punishable under Sections 108, 351 (2) of B.N.S. It is vehemently submitted that deceased/victim's mobile phone was taken by her father, therefore, he was not able to  contact with the deceased. It is also wrong to say that he has made any call to the victim/deceased just prior to the incident. He further added in the arguments that it is a case of honor killing as parent of the victim/deceased did not want to marry her daughter or sister to the applicant. It is also submitted that the brother of the deceased has given knife blow to the victim/deceased as he was not happy with the deceased as she wanted to marry with the applicant. Learned counsel further submitted that in view of the aforesaid facts and circumstances, applicant has not committed any offence punishable under Section 108, 351 (2) of B.N.S. as no ingredients satisfied for commission of the offence as alleged in the first information report. Learned counsel appearing on behalf of applicant further undertakes that he will co-operate with the investigating agency and he shall abide by all terms and conditions imposed by the Court while granting anticipatory bail. He prayed that applicant may be released on bail at the event of arrest as no case is made out against him.

3. Per contra, leaned A.G.A. appearing on behalf of State vehemently opposed the instant application and submitted that applicant is charged for the offence punishable under Section 108, 351 (2) of B.N.S. which is serious in nature. It is also submitted that applicant had called the victim/deceased just prior to the incident and the duration of the said call was 26 Minutes and 47 Seconds. He vehemently submitted that such long time of conversation with the victim/deceased instigated her to commit suicide. He vehemently opposed the submission made by learned counsel for the applicant that applicant was not able to contact the deceased as her mobile was taken by her father and due to non-availability of mobile, he could not make contact with the deceased. It is also wrong to say that victim was never threatened by the applicant as alleged in the F.I.R. Learned A.G.A. has placed the case diary before Court during arguments. He has also referred the C.D.R. which is annexed with case diary and submitted that after perusal of the C.D.R. and pen drive which has already been saved by the investigating agency clearly established that he has instigated the victim to commit suicide. Relying upon the case diary, he further submitted that applicant is not co-operating with the Investigating Agency and he is required for the custodial interrogation. Learned A.G.A. submitted that in view of the aforesaid facts and circumstances, the instant application is devoid of merits and applicant is not entitled for any relief as prayed in the application.

4. Heard learned counsel appearing on behalf of applicant as well as learned A.G.A. for the State and perused the material on record.

5. The present application has been filed by the applicant Sagar Vishvkarma seeking anticipatory bail on the apprehension of arrest by the police in relation to the Case Crime No. 35 of 2025.

6. The crux of the allegations against the applicant herein is that the deceased committed suicide by hanging herself in the house due to the applicant was making pressure upon her that if she will not marry him, he will make the said video viral.

7. Contention of learned counsel for the applicant is that victim and applicant fallen in love to each other and she used to chat with the applicant regularly. It is also submitted that since they were in love and wanted to marry each other the family of the deceased/victim has pressurized her not to marry him, and therefore, she has hanged herself. Learned counsel appearing on behalf of the applicant further submitted that death of the victim was not a case of suicide but it was an honor killing by the family members of the victim.

8. The learned counsel appearing on behalf of State vehemently opposed and submitted that as per the case diary, the applicant has sent a whatsapp audio recording to the victim just before the alleged incident. It is further submitted that said audio recording was saved in the pen drive and kept in police custody. It is also submitted that as per the C.D.R. report the applicant has made a call to the victim/deceased and made conversations with her for 26 Minutes and 47 Seconds, just before the alleged incident due to that call made by the applicant, the victim has been instigated and forced to commit the suicide.

9. Before delving into the merits of the case at hand, after considering the rival submissions made by the learned counsel for the respective parties, this Court deems it appropriate to fist discuss the principle behind grant of pre-arrest bail to an accused. The said relief is provided for under Section 482 of BNSS (similar to Section 438 of Cr.P.C., 1973) which reads as under:

"482. Direction for grant of bail to person apprehending arrest-(1)When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

2)When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

(ii) a condition that the person 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 him from disclosing such facts to the Court or to any police officer;

(iii) a condition that the person shall not leave India without the previous permission of the Court;

(iv) such other condition as may be imposed under sub-section (3) of section 480, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1)

(4)Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under section 65 and sub-section (2) of section 70 of the Bharatiya Nyaya Sanhita, 2023."

10. The above said provision is subjected to interpretation by the various Courts of the country and it is trite to say that the law regarding the grant of anticipatory bail is settled law.

11. In Gurbaksh Singh Sibbia v. State of Punjab,1 the Hon'ble Supreme Court laid down the guidelines for the Courts to take into consideration while granting anticipatory bail. The relevant parts of the said judgment read as under:-

"31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in State v. Captain Jagjit Singh [AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 CriLJ 216] , which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to

restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.

32. A word of caution may perhaps be necessary in the evaluation of the consideration whether the applicant is

likely to abscond. There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it. In his charge to the grand jury at Salisbury Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] ), Lord Russel of Killowen said: (SCC p. 243, para 5)

".. it was the duty of Magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with which to fly from justice."

This, incidentally, will serve to show how no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail, whether anticipatory or otherwise. No such rules can be laid down for the simple reason that a circumstance which, in a given case, turns out to be conclusive, may have no more than ordinary signification in another case.

33. We would, therefore, prefer to leave the High Court and the Court of Session to exercise their jurisdiction under Section 438 by a wise and careful use of their discretion which, by their long training and experience, they are ideally suited to do. The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application. It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, "the legislature in its wisdom" has thought it fit to use a particular expression. A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom. If they err, they are liable to be corrected.

34. This should be the end of the matter, but it is necessary to clarify a few points which have given rise to certain misgivings.

35. Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has "reason to believe"that he may be arrested for a non-bailable offence. The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not "belief" for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individuals liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely.

36. Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises. Such a course will defeat the very object of Section 438.

37. Thirdly, the filing of a first information report is not a condition precedent to the exercise of the power under Section 438. The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed.

38. Fourthly, anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested.

39. Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, insofar as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.

40. We have said that there is one proposition formulated by the High Court with which we are inclined to agree. That is proposition (2). We agree that a 'blanket order' of anticipatory bail should not generally be passed. This flows from the very language of the section which, as discussed above, requires the applicant to show that he has "reason to believe" that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". That is what is meant by a 'blanket order' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be had. The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non-bailable offence. It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section. But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.

41. Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general. It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided. A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if he commits, say, a murder in the presence of the public. Such an order can then become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective. The power should not be exercised in a vaccum"

12. The above said principles were reiterated by the five judges bench of the Hon'ble Supreme Court in the case of Sushila Aggarwal v. State (NCT of Delhi)2, whereby, the Hon'ble Court discussed the principles regarding grant of the anticipatory bail in detail.

13. The above said judicial dicta clarifies that Courts are duty bound to the adhere to the principles. Therefore, the position of law requires the Courts to apply its mind as per the factual scenario and adjudicate the application for grant of the anticipatory bail in consonance with the law laid down by the Hon'ble Supreme Court.

14. One of the important factors while granting an anticipatory bail is whether there is a possibility of collecting incriminating evidence from a person and if their custody is necessary for the same and second important factors are whether any chance to avoid the investigation or to influence the investigation or trial by the accused person.

15. It is settled law that such discretionary power cannot be exercised in an untrammelled manner. The Court must taken into account the statutory scheme under Section 482 of BNSS and compliance the concerns of Investigating Agency, complainant and the society at large with the concerns /interest of the applicant. Therefore, sucsh an order must necessarily be narrowly tialored to protect the interest of the applicant while taking into consideration the concerns of the Investigating Authority. Such an order must be a reasoned one.

16. After a thorough deliberation, this Court arrived at the following conclusion for purpose of consideration of granting anticipatory bail

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest made.

(ii) The antecedents of the applicant.

(iii) The possibility of the applicant to flee from justice.

(iv) The possibility of the accused is likelihood to repeat similar or other offence.

(v) Impact of grant of anticipatory bail.

17. Now taking into consideration of the aforesaid law as settled by the Hon'ble Supreme court and principle laiddown by the Hon'ble Supreme Court and mandate of the statutory provisions, I have to adjudicate the instant case on the material available on record and also taking into consideration of the arguments advanced by learned counsel appearing on behalf of respective parties.

18. I have also perused the case diary which has been placed by learned A.G.A. before the Court. The descriptions mentioned therein are as follows-

".....तत्पश्चात वादी मुकदमा के पुत्र आशीष द्वारा मो०नं० 9794446692से जरिए वाट्सअप से भेजे गये 26 मिनट 47 सेकेण्ड के आडियो रिकार्डिंग में मृतका आराधना उर्फ पूजा विश्वकर्मा से वार्तालाप के दौरान अभियुक्त सागर विश्वकर्मा द्वारा शादी का दबाव बनाते हुए, अभियुक्त सागर द्वारा आत्महत्या करने की बात बार बार की जा रही है। प्राप्त आडियो रिकार्डिंग को एक पेनड्राइव में सेव करके एक सादे कपड़े मे सील सर्व मोहर कर संलग्न सीडी किया जा रहा है। "

19. Taking into consideration of the C.DR. as well as audio recording which has been seized by the police and saved in the pen drive as quoted above, it is established that applicant has made a call to the victim/deceased and had conversation with her for 26 Minutes and 47 Seconds, due to that conversations the deceased might be instigated by the applicant and due to that instigation she has killed herself by way of hanging. It is also specific allegation against the applicant that he is not co-operating with the investigating agency and due to non co-operation in the investigation, police could not file the charge sheet yet. There are sufficient material on record available to connect the applicant to commission of instant offence. Since he is not co-operating with the trial Court, therefore, after perusal of the other material on record, I am convinced that there are possibility of the applicant to flee from justice.

20. After taking into consideration, the material on record and also nature of offence, a strong prima facie case has been made out against the applicant and that his custodial interrogation is vital to be objective of unearthing the conspiracy and instigation as alleged

21. In light of above discussion and without expressing any view on the merits of the case, the instant application is dismissed as devoid of any merit.

Order Date :- 16.4.2025/AKT

(Chandra Dhari Singh, J)