Court No. - 36
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9195 of 2021
Applicant :- Anil Mithas And Another
Opposite Party :- State of U.P.
Counsel for Applicant :- Ananya Pandey,Ashish Kumar Dubey,C.L. Pandey Sr. Advocate,Rajesh Chandra Dwivedi Counsel for Opposite Party :- G.A.
Hon'ble Mahesh Chandra Tripathi,J.
As per Resolution dated 07.04.2021 of the Committee of this Court for the purpose of taking preventive and remedial measures and for combating the impending threat of Covid-19, this case is being heard by way of virtual mode.
Heard Shri C.L. Pandey, learned Senior Advocate assisted by Ms. Ananya Pandey, Advocate; Shri Ashish Kumar Dubey, Advocate and Shri Rajesh Chandra Dwivedi Advocate and learned A.G.A for State through video conferencing.
Order on Criminal Misc. Exemption Application
This exemption application is allowed.
Order on Criminal Misc. Anticipatory Bail Application
The instant anticipatory bail application has been filed with a prayer to grant anticipatory bail to the applicants, Anil Mithas and Madhu Mithas, in Case Crime No./FIR no.1034 under Sections 420, 406 IPC, Police Station- Phase III, District Gautam Budh Nagar.
Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
There is allegation that the applicants have fraudulently sold Flat no.1804 Tower 3, Plot no.2, Sector 119, Noida, Uttar Pradesh to the first informant, whereas, the same has already been allotted to one Sri Sachin Singh Thakur, on which he has already take a loan.
Shri C.L. Pandey, learned Senior Advocate submits that the applicants' company namely M/s Unnati Fortune Group, which is engaged in the business of development of land, marketing and sale of real estate projects in NCR and other places, has already cancelled the allotment of Sachin Singh Thakur on the basis of letter received from Axis Bank Ltd., annexed as annexure no.4 to the affidavit filed in support of bail application. Thereafter, the same has been allotted in favour of complainant in the month of April 2017, who is in possession of the same. At no point of time, the applicants have committed any fraud and they have been falsely implicated in this case with the ulterior motive. The applicants have no criminal history to their credits. The applicants have definite apprehension that they may be arrested by the police any time.
Learned A.G.A. has opposed the prayer for anticipatory bail of the applicants. He has submitted that in view of the seriousness of the allegations made against the applicants, they are not entitled to grant of anticipatory bail. The apprehension of the applicants are not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
After considering the rival submissions, this Court finds that there is a case registered against the applicants. It cannot be definitely said when the police may apprehend them. After the lodging of F.I.R., the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an F.I.R. has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made.
Without expressing any opinion on the merits of the case and considering the nature of accusation and their antecedents and also the second surge in the cases of coronavirus and possibility of further surge of the pandemic, the applicants are entitled to be released on anticipatory bail for limited period in this case considering the exceptions considered by the Hon'ble Supreme Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and in view of the judgment of this Court in Criminal Misc. Anticipatory Bail Application No.4002 of 2021 (Prateek Jain v. State of U.P.) dated 10.05.2021.
In the event of arrest, the applicants shall be released on anticipatory bail till cognizance is taken by the competent court on the police report, if any, under section 173 (2) Cr.P.C. on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court with the following conditions:-
(i) The applicants shall make themselves available for interrogation by the police officer as and when required;
(ii) The applicants 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 from disclosing such facts to the Court or to any police officer;
(iii) The applicants shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. concerned.
(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(v) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicants.
The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicants.
The applicants are directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress, who shall ensure the compliance of present order.
Order Date :- 17.5.2021
A. Pandey