Heard Shri Santosh Kumar Kanaujia, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
The instant bail application has been moved by the accused/applicant- Aditya Gupta in Case Crime No. 351 of 2019, under Sections 419, 420 I.P.C. and Section 136(1)(C) of Indian Electricity Act, Police Station Pasgavan, District Lakhimpur Kheri, with the prayer to enlarge him on anticipatory bail, as he is apprehending arrest in the above-mentioned case.
Learned counsel for the accused-applicant while drawing the attention of this Court towards the contents of the F.I.R. as well as many other documents available on record, vehemently submits that the F.I.R. of this case has been lodged with fabricated and concocted facts and the investigating officer of the case has not investigated the allegations of the F.I.R. in right perspective and has submitted the charge sheet against the applicant under Sections 419, 420 I.P.C. and Section 136(1)(C) of Indian Electricity Act.
It is also submitted that during the course of investigation the applicant had approached a Division Bench of this Court by filing a Criminal Writ (M/B) No. 22231 of 2019 and vide order dated 20.08.2019 the benefit of Section 41 and 41-A of the Cr.P.C. of the guidelines enshrined in 'Arnesh Kumar vs. State of Bihar, (2014) 8 SCC 273' was extended to the applicant. The applicant has cooperated in the investigation and the charge sheet has been filed without making his arrest.
It is further submitted that applicant is not having any criminal history and he is ready to co-operate in the trial. Thus, protection from arrest be also granted to the instant applicant.
Learned A.G.A. on the other hand opposes the submissions of learned counsel for the applicant on the ground that the charge sheet has been submitted and the charged offences are punishable with up to seven years' of imprisonment and the applicant may appear before the trial Court for the purpose of obtaining regular bail.
Having heard learned counsel for the parties and having perused the record and keeping in view all the facts and circumstances of the case and also the admitted facts that the charge sheet has been filed after investigation and for those offences which are punishable with up to seven years' of imprisonment, the Hon'ble Supreme Court in 'Satender Kumar Antil Vs. Central Bureau of Investigation and others' : (2021) 10 SCC 773 and in 'Aman Preet Singh Vs. C.B.I. through Director' : 2021 SCC OnLine SC 941 has chalked out a complete mechanism for those cases wherein the accused persons have not been arrested during the course of investigation and the charge sheet has been filed without making arrest of them under those offences which are punishable with up to seven years' of imprisonment.
For ready reference to the trial Court, the observations of the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation (supra) are reproduced here-under in verbatim:-
"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.
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 chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615) CATEGORY A After filing of chargesheet/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 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. (emphasis mine) 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." (emphasis mine).
Thus, having regard to the law laid down by the Hon'ble Supreme Court quoted herein-before and keeping in view all the facts and circumstances of the case, the instant anticipatory bail application moved on behalf of the applicant- Aditya Gupta is finally disposed of in terms that applicant shall appear/surrender before the trial Court within 20 days from today and shall move an appropriate application for regular bail before the trial court and if such an application is moved within the period stipulated herein-above, the trial court shall be under an obligation to dispose of the same, after providing an opportunity of being heard to the parties, strictly in accordance with law laid down by Hon'ble Supreme Court in Satender Kumar Antill (supra) and Aman Preet Singh (supra).
Order Date :- 13.4.2023 Praveen