Jharkhand High Court
Sandeep Sahni vs The State Of Jharkhand on 8 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 1565 of 2023
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Sandeep Sahni, aged about 48 years, S/o Satish Sahni, R/o Village-23 C,
M.I.G. Sector 82, Noida, P.O. Noida Gautam Buddha Nagar, P.S. Noida,
District-Noida, State-Uttar Pradesh
... ... Appellant
Versus
The State of Jharkhand ....Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Sunil Kumar Ganjhu, Advocate
Mr. Ashok Kumar Goel, Adv.
For the Resp.State : Mr. Sudhir Kumar Mahato, A.P.P.
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th
05/Dated: 08 February, 2024
1. The instant criminal appeal has been filed under Section 21(4) of the
National Investigation Agency Act, 2008 against the order dated 26.06.2023
passed by the learned District & Additional Sessions-I, Khunti in
Anticipatory Bail Petition No. 162 of 2023, whereby and whereunder the
prayer for pre-arrest bail in connection with Khunti (AHTU) P.S. Case
No.06 of 2022 (G.R. Case No.294 of 2023) registered under Section 363,
370(4), 371 and 374 of Indian Penal Code, under Section 16/18 of Bonded
Labour System(Abolition) Act and under Section 3(1) of the Child Labour
Prohibition Act, has been rejected.
2. Learned counsel appearing for the appellant has submitted that there is no
allegation even after going through the First Information Report and the case
diary.
Although the allegation has been levelled for commission of offence
under Sections 363, 370(4), 371, 374 of Indian Penal Code and under
Sections 16/18 of Bonded Labour System(Abolition) Act and under section
3(1) of Child Labour Prohibition Act but none of the ingredients of the
aforesaid offences are attracted against the appellant if the statement of the
victim recorded under section 164 of Cr.P.C. will be taken into consideration
as available in the case diary.
3. Learned counsel appearing for the appellant based upon the aforesaid ground
has submitted that since there is no prima facie case even after going
through the case diary and First Information Report, hence, if the appellant
will be taken into custody the same will be very harsh for no fault and he
will have to go behind the bars, which fact has not been taken into
consideration by learned court below while considering the prayer for pre-
arrest bail of the appellant. Therefore, the present appeal.
4. While on the other hand, Mr. Sudhir Kumar Mahato, learned Additional
Public Prosecutor appearing for the State of Jharkhand has vehemently
opposed the prayer for bail.
5. It has been submitted, by taking into consideration the nature of the offence
as per the allegation made in the FIR, that it is not a case for grant of pre-
arrest bail.
It is further been submitted that the learned trial court after
considering the issue on merit, which is a case of trafficking of the children,
has rejected the prayer for pre-arrest bail and the same cannot be said to
suffer from any error or irregularities, as such, the impugned order may not
be interfered with.
6. We have heard learned counsel for the parties and perused the findings
record by learned court below while considering the prayer for pre-arrest
bail of the appellant and the case diary.
7. This Court in order to appreciate the argument to the effect that it is not a
case where the allegations are said to be apparent from bare perusal of the
First Information Report or the case diary so as to come to conclusion, as to
whether the present case is fit for grant of pre-arrest bail.
8. It is settled proposition of law that the pre-arrest bail is to be granted on the
basis First Information Report or the material collected in course of the
investigation, if no prima facie case has been made out as alleged.
9. It is pertinent to mention here that the law on grant of anticipatory bail has
been summed up by the Hon'ble Apex Court in Siddharam Satlinappa
Mhetre vs. state of Maharashtra & Ors. reported in (2011)1 SCC 694 after
due deliberation on the parameters as evolved by the Constitution Bench in
Gurubaksh Singh Sibbia vs. State of Punjab reported in (1980) 2 SCC 565.
The relevant paragraphs of the said judgment as rendered by the Hon'ble
Apex Court is being quoted hereunder:-
"111. No inflexible guidelines or straitjacket formula can be provided for
grant or refusal of anticipatory bail. We are clearly of the view that no
attempt should be made to provide rigid and inflexible guidelines in this
respect because all circumstances and situations of future cannot be
clearly visualised for the grant or refusal of anticipatory bail. In
consonance with the legislative intention the grant or refusal of
anticipatory bail should necessarily depend on the facts and circumstances
of each case. As aptly observed in the Constitution Bench decision in
Sibbia case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465] that the High Court
or the Court of Session has to exercise their jurisdiction under Section 438
CrPC by a wise and careful use of their discretion which by their long
training and experience they are ideally suited to do. In any event, this is
the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration
while dealing with the anticipatory bail: A.B.A. No.6126 of 2023 With
(i) The nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by a court
in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other
offences;
(v) Where the accusations have been made only with the object of injuring
or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the
accused very carefully. The court must also clearly comprehend the exact
role of the accused in the case. The cases in which the accused is
implicated with the help of Sections 34 and 149 of the Penal Code, 1860
the court should consider with even greater care and caution because
overimplication in the cases is a matter of common knowledge and
concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance
has to be struck between two factors, namely, no prejudice should be
caused to the free, fair and full investigation and there should be
prevention of harassment, humiliation and unjustified detention of the
accused;
(ix) The court to consider reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the
element of genuineness that shall have to be considered in the matter of
A.B.A. No.6126 of 2023 With A.B.A. No.6966 of 2023 12 grant of bail and
in the event of there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is entitled to an
order of bail.
114. These are some of the factors which should be taken into
consideration while deciding the anticipatory bail applications. These
factors are by no means exhaustive but they are only illustrative in nature
because it is difficult to clearly visualise all situations and circumstances
in which a person may pray for anticipatory bail. If a wise discretion is
exercised by the Judge concerned, after consideration of the entire
material on record then most of the grievances in favour of grant of or
refusal of bail will be taken care of. The legislature in its wisdom has
entrusted the power to exercise this jurisdiction only to the Judges of the
superior courts. In consonance with the legislative intention we should
accept the fact that the discretion would be properly exercised. In any
event, the option of approaching the superior court against the Court of
Session or the High Court is always available."
10.This Court, based upon the aforesaid premise of the legal position, is now
proceeding to examine the factual aspects so as to appreciate the argument
advanced on behalf of the appellant.
11.This Court straightaway has gone into para 80 of the case diary, which is the
statement recorded of the victim under section 164 of Cr.P.C. The appellant
is named in the First Information Report but for the purpose to appreciate the
involvement of the appellant, we have gone into the statement of the victim
recorded under section 164 of Cr.P.C. as referred in para 80 of the case
diary.
From perusal of the aforesaid statement as recorded of three victims,
the reference of the name of the appellant has not been taken. The victims
are the main suffers and when she has not disclosed the name of the
appellant, hence, we are of the view that it is an incorrect on the part of the
learned State counsel that the nature of allegation is serious, since the
appellant has been named in the FIR, hence, the benefit of pre-arrest bail is
not fit to be granted pre-arrest bail.
12.The principle, which is to be considered that mainly because the person
concerned is named in the FIR and in course of the investigation and nothing
has come then also such person cannot be allowed to face the rigor of
custody.
13.Herein, the statements of the victims prima facie discloses no commission of
offence as levelled against the appellant. Therefore, this court is of the view
that learned court while considering the prayer for pre-arrest bail ought to
have taken into consideration the facts but the learned court having not done
so, therefore, the impugned order needs to be interfered with.
14.This Court considering the aforesaid fact is of the view that it is a case where
the privilege of pre-arrest bail is to be considered and granted, accordingly,
the learned trial court has failed to consider the aforesaid principles and
hence, we are of the view that the impugned order must be interfered with.
15.Accordingly, the order dated 26.06.2023 passed in A.B.P. Case No.162 of
2023 in connection with Khunti (AHTU) P.S. Case No.06 of 2022(G.R.
Case No.294 of 2023), is hereby quashed and set aside.
16.In view thereof, the instant appeal stands allowed.
17.On consideration of the aforesaid facts, this Court is inclined to extend the
privilege of pre-arrest bail to the appellant. The appellant, named above,
accordingly, is directed to surrender before the learned court below within
10 days and on his surrender, he shall be released on bail on furnishing bail
bond of Rs.25,000/- (Rupees Twenty Five Thousand Only) with two sureties
of the like amount each, to the satisfaction of the learned CJM, Khunti in
connection with Khunti (AHTU) P.S. Case No. 06 of 2022 (G.R. Case
No.294 of 2023), subject to the condition as follows:
(i) that the appellant shall co-operate in the investigation and shall appear
before the investigation agency and the learned trial court, as and
when required;
(ii) that the 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 from disclosing such facts to the
court or tamper with the evidence;
(iii) that the appellant shall surrender his passport, if any, to the concerned
trial Court forthwith. His passport will remain in custody of the
concerned trial Court;
(iv) that the appellant shall not leave India during the pendency of trial
without prior permission from the concerned trial Court;
(v) that in default of any of the conditions mentioned above, the
investigating officer shall be at liberty to file appropriate application
for cancellation of anticipatory bail granted to the appellant;
18.In view thereof, the instant appeal stands disposed of.
19.It is made clear that if the appellant, in future, found involved in the case of
like nature, the prosecuting agency will be entitled to file appropriate
application for cancellation of anticipatory bail granted to the appellant.
(Sujit Narayan Prasad, J.)
(Pradeep Kumar Srivastava, J.)
pappu/-
