Seema Agrawal vs State Of Chhattisgarh
2022 Latest Caselaw 305 Chatt

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                                                                          NAFR
               HIGH COURT OF CHHATTISGARH, BILASPUR
                           CRA No. 1532 of 2021

     Seema Agrawal W/o Shri Sanjay Agrawal Aged About 45 Years R/o
     School Para Baikunthpur, Tahsil Baikunthpur, District Koriya
     Chhattisgarh.
                                                                 ---- Appellant
                                 Versus
     State of Chhattisgarh Through Station House Officer, Police Station
     AJAK, Thana, Baikunthpur, District Koriya Chhattisgarh.
                                                             --- Respondents

For Appellant : Mr. Kishore Bhaduri, Senior Advocate with Mr. Sunny Agrawal, Advocate.

For Respondent-State : Mr. Vimlesh Bajpai and Shri Sameer Oraon, GA.

For Complainant : Mr. Rahul Agrawal, Advocate. Complainant is also present before this Court by virtual mode from DLSA, Baikunthpur, Koriya.

(Proceedings through video conferencing) Hon'ble Shri Justice Parth Prateem Sahu Order on Board 19/01/2022

Heard.

1. Learned counsel for complainant alongwith complainant submits that

there is no allegation in complaint against appellant of any nature.

Complainant is having no objection in granting bail to appellant. It is also

submitted that even the complaint stated to be lodged on 18.09.2020 was

not with his own will but it was lodged under pressure of Police Official.

2. This criminal appeal under Section 14A(1) of Scheduled Caste &

Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short, 'Act of

1989') is filed against order dated 17.11.2021 passed by learned Special

Judge SC/ST (Prevention of Atrocities) Act, Koriya, Baikunthpur, (CG)

whereby appellants' application filed under Section 438 of Cr.P.C for

grant of anticipatory bail is rejected.

3. Appellant is apprehending his arrest in connection with Crime No.

32/2020 registered at Police Station -AJAK, Baikunthpur, District

Koriya, (CG), for offence punishable under Sections 294, 506, 420, 467,

468, 471, 374, 409, 120B of IPC and Section 3(1)(r)(s), 3(1)(h), 3(1)(f),

3(1)(g) and 3(2)(va) of the Act of 1989.

4. Case of prosecution, in brief, is that on 18.09.2020 complainant Sant

Kumar lodged written complaint mentioning therein that since the year

2013 he was working as 'Supervisor/Munshi' with Sanjay Agrawal

(husband of present appellant) and supervising work of construction of

residential accommodation. During that period, he took hand loan of

Rs.2.75 lakhs from Sanjay Agrawal, some of amount has been returned

to Sanjay Agrawal. Taking benefit of complainant being an employee and

obtained loan amount from him, Sanjay Agrawal under pressure obtained

signature of complainant as witness in number of documents. When

complainant try to refuse to sign documents, Sanjay Agrawal abused him

in filthy language as well as by his caste. On 10.09.2020, complainant

revealed that Sanjay Agrawal got prepared his power-of-attorney in name

of Arvind Singh. He was not known to Arvind Sigh. Based on written

report, aforementioned crime was registered against Sanjay Agrawal.

5. Learned Senior Counsel submits that allegations levelled against

appellant are absolutely false and baseless. Appellant is also one of

Director of M/s. Maa Vaishnav Devi Associate along-with husband

(Sanjay Agrawal). Under apprehension of arrest in aforementioned crime,

appellant moved an application for grant of anticipatory which was

dismissed by Court below observing that prima facie appellant in-

collusion with her husband (Sanjay Agrawal) has cheated complainant.

Learned Senior Counsel submits that observation made by Court below

while dismissing application was unwarranted as in written complaint

lodged by complainant no allegations are levelled against present

appellant. Allegation of obtaining signature under pressure in several

documents, preparing power-of-attorney in name of Arvind Singh without

knowledge of complainant is only against Sanjay Agrawal. FIR is

registered against Sanjay Agrawal only but even then objection is filed by

police before Court below mentioning that appellant who is one of the

Director of M/s. Maa Vaishnav Devi Associate is absconding and

Panchnama to this effect is also prepared. For considering the bail

application only contents of allegation in FIR are to be taken into

consideration. When there is no allegation against appellant, no such

objection ought to have been raised and by contents of objection there is

prima facie apprehension of appellant that she may be arrested in any

point of time. It is also pointed out that trial Court dismissed application

observing that under the provisions of Section 18 of the Act of 1989 there

is bar in filing application under Section 438 of Cr.P.C, where offence

under the Act of 1989 is also alleged to have been committed.

6. Learned Senior Counsel further submits that perusal of entire complaint

would show that all allegations if accepted to be true are against co-

accused Sanjay Agrawal. There is no specific allegation of involvement or

participation of appellant is mentioned in complaint. Merely, appellant

being one of the Directors along-with co-accused Sanjay Agrawal of M/s

Maa Vaishnav Devi Associates, cannot be said to have committed any

offence as alleged, particularly when complaint specifically discloses

allegations against a particular person, based on which FIR is registered

only against Sanjay Agrawal (co-accused). He further submits that when

application for grant of anticipatory bail is filed by appellant before Court

below, Police filed an objection mentioning therein that land of one of

victims i.e. Smt. Shanti Bai, is purchased after obtaining permission from

the Additional Collector in name of Rajesh Singh and without getting first

sale deed cancelled, a sale deed is executed in favour of Arvind Singh,

an employee of M/s Maa Vaishnav Devi Associates, but appellant has

been shown to be absconding, though there is no allegation against

appellant in FIR or in complaint. He also submits that application can be

considered in exceptional circumstances where appellant is able to prove

that allegations levelled are absolutely false and frivolous. From contents

of FIR, no offence under the Act of 1989 is made out against applicant.

He submits that firstly there are no allegations against appellant in

complaint but even then Police filed an objection in grant of bail to

applicant. Secondly, complainant, who is appearing before this Court in

person, stated that he was forced by Police to lodge report against co-

accused. Hence, in the aforementioned facts of the case, appellant may

be extended benefit of anticipatory bail.

7. Learned State Counsel opposes submissions of learned counsel for

appellant submits that though complaint is lodged only against Sanjay

Agrawal, FIR is registered against him only, but appellant being one of

Director of M/s. Maa Vaishnav Devi Associate, she is vicariously liable for

the act of co-accused Sanjay Agrawal another Director. Hence, objection

was raised by Investigating Agency before Court below. The matter is still

under investigation and material is to be collected by Investigating

Agency. However, upon asking to State Counsel, he submits that in

complaint allegations are against Sanjay Agrawal and read over contents

of complaint.

8. Heard learned counsel for parties.

9. True it is that under the provisions of Section 18 of the Act of 1989, there

is bar of applicability of Section 438 of Cr.P.C when there is an allegation

of commission of offence under the Act of 1989, but in exceptional cases

High Court can grant prayer for pre-arrest bail. Hon'ble Supreme Court

has held that benefit of pre-arrest bail can be considered in very

exceptional circumstances where no prima facie offence is made out as

shown in FIR and further also that if such orders are not made in those

classes of cases, result would inevitably be a mis-carriage of justice or

abuse of process of law. Hon'ble Supreme Court in case of Prathvi Raj

Chauhan vs Union of India & Ors reported in (2020) 4 SCC 727 while

overruling part of judgment passed in Dr. Subhash Kashinath Mahajan

case (supra) held as under :-

"32. As far as the provisions of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the Court has the inherent power to direct a pre-arrest bail.

33. I would only add a caveat with the observation and the emphasise that while considering any application seeking pre-arrest bail, the High Court has to balance the two interest:"

10.In view of aforementioned ruling of Hon'ble Supreme Court that High

Court in exceptional cases can pass order of granting pre-arrest bail. If

facts of present case are considered, nature of allegations, as appearing

from contents of written complaint read over by learned State Counsel

wherein all allegations are against Sanjay Agrawal, would show there is

no whisper of any act of appellant, submission of learned counsel for

complainant and also the complainant that complainant is having no

objection in grant of bail to appellant, he has not lodged any complaint

against appellant, the complaint lodged is under pressure of Police, I am

of the view that appellant is able to make out a case of interference with

impugned order. The order passed by Court below is liable to be set

aside.

11. Accordingly, impugned order passed by Court below is set aside. Appeal

is allowed and it is directed that in event of arrest of appellant in

connection with crime in question, he shall be released on bail by Officer

Arresting him on his executing a personal bond in sum of Rs.25,00/- with

one surety in like sum to satisfaction of the concerned Arresting Officer.

Appellant shall also abide by the following conditions :

(i) that appellant shall make himself for interrogation before investigating officer as and when required;

(ii) that appellant 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/her from disclosing such facts to the Court or to any police officer;

(iii) that appellant shall not act, in any manner, which will be prejudicial to fair and expeditious trial; and

(iv) that appellant shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial.

Sd/-

(Parth Prateem Sahu) Judge

Jamal/-