Ms. Shreya Gupta, Advocate has filed vakalatnama on behalf of the first informant in the Court today which is taken on record.
Affidavit filed on behalf of the informant in the Court today is taken on record.
Heard learned counsel for the applicant, Sri Anoop Trivedi, learned Senior Counsel assisted by Ms. Shreya Gupta, learned counsel for the first informant and learned A.G.A. for the State.
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 an anticipatory bail to the applicant, Dr. Prakash Kumar Khetan, in Case Crime No. 25 of 2020, under Sections- 147, 148, 149, 354-A, 452, 504, 506, 427 I.P.C., Police Station- George Town, District- Prayagraj.
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.
The allegation against the applicant is that he is neighbour of the informant. He is a doctor and extending his clinic. He is making illegal constructions in his clinic regarding which number of complaints have been made before the Prayagraj Development Authority. The sister of the informant died on 11.01.2020 at America. During the condolence meeting of the death of his sister on 15.01.2020 at about 10:45 p.m., the applicant and co-accused under the influence of liquour, came inside his house for offering condolence and abused him. At 11:30 p.m., the applicant along with 10-11 persons, who had country-made pistols, iron rods and bricks, entered in the house of the informant and the applicant fired upon the informant but it didn't hit him. The wife of the applicant was also threatened by the applicant and his companions and he tried to do obscene act with his wife. The vehicle of the informant standing outside his house was also broken. In the morning, when he was going to lodge the F.I.R, he was threatened. The F.I.R was lodged by the informant on 16.01.2020 at 21:07 hours.
Learned counsel for the applicant has submitted that the applicant has been implicated in an absolutely false case by way of counterblast. Infact on 15.01.2020, the informant had badly beaten the guard of the applicant, who is co-accused in the present case and the applicant had informed the police on dial number 112. The police came and pacified the informant. After the police went back, the informant again started threatening the applicant and his guard, Dinesh Kumar, and therefore, the guard lodged the F.I.R against the informant at 23:50 hours on 15.10.2020 which was registered as Case Crime No. 24 of 2020 under Section 323, 504, 506 I.P.C. at P.S.- George Town, District- Prayagraj. The present F.I.R was lodged on the next day i.e., 16.01.2020 at 21:07 hours at the same police station as Case Crime No. 25 of 2020 along with sections mentioned in the bail application. The applicant was also implicated for offence u/s 307 I.P.C. The Investigating Officer investigated the matter and found that the informant had not been able to produce any evidence regarding commission of any offence u/s 307 I.P.C. and therefore, on 23.01.2020, the applicant was exonerated of implication for committing the offence u/s 307 I.P.C.
Learned counsel for the applicant further submitted that on 15.01.2021, the police came to his house to arrest him. He was not in the house and therefore, could not be arrested. Thereafter, the applicant enquired from the counsels in the district court about moving anticipatory bail application before Sessions Judge but he was informed that on the allegations made in the F.I.R, there are very bleak chances for him to get anticipatory bail from the Sessions Court. It was also informed that there is uncertainty about functioning of the Sessions Court and the applicant may be arrested in the meantime. The applicant claims himself to be a renowned neurosurgeon of the city and has given details of his achievements in the affidavit in support of the bail application. His patients are suffering on account of the applicant being unable to attend his clinic in the city due to fear of arrest by police. Complicated neurosurgeries are performed by him and the fear in his mind prevents him from concentrating on his work and therefore, he is before this Court for grant of anticipatory bail.
Sri Anoop Trivedi, learned Senior Counsel for the first informant has vehemently opposed the bail application. He has submitted that the applicant barged into the house of the informant at the time when his sister had died and the people had gathered there for offering condolences. He has next submitted that the informant and his wife are advocates and the applicant tried to commit obscene act with the wife of the informant. He has further submitted that the Investigating Officer has wrongly removed Section 307 I.P.C. during investigation when allegations to this effect are clear in the F.I.R.
He has relied on the affidavit filed on behalf of first informant wherein number of documents relating to complaints made against the applicant before the Prayagraj Development Authority have been brought on record. The complaints are regarding alleged illegal constructions being made by the applicant.
Learned Senior Counsel has stressed upon the photographs annexed with the affidavit to show that the alleged offence was committed by the applicant. He has lastly submitted that the matter should be kept pending and not decided at this stage, if it is not being dismissed, since the offences alleged against the applicant are fully made out.
Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
After considering rival submissions, this Court finds that it is clear that there is dispute between the parties regarding some constructions which are being raised by the applicant in his house and the informant has objection to the aforesaid constructions. Number of documents showing that the informant has made complaints before the Prayagraj Development Authority against the applicant and acting on such complaints, the Prayagraj Development Authority has issued notices to the applicant, have been annexed with the affidavit filed by the informant. It is further evident that on 15.01.2020, the guard of the applicant and co-accused, Dinesh Kumar, had lodged the F.I.R against the informant and on the very next day, the F.I.R dated 16.01.2020 was lodged against the applicant and his guard, alleging graver offences. Although in the F.I.R dated 16.01.2020, the incident is alleged to have occurred on 15.01.2020 but the F.I.R was lodged on 16.01.2020 and therefore, the possibility of lodging of counterblast F.I.R cannot be ruled out. The Investigating Officer has found that the allegations regarding commission of offence under Section 307 I.P.C. were false and therefore, a part of allegation made in the F.I.R dated 15.01.2020 has not been found to be correct. Regarding allegations of committing offence under Section 354-A I.P.C., there is nothing seen in the photographs brought on record nor any specific allegation has been made as to what obscene act was done. For constituting offence u/s 354A I.P.C., physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favours; or showing of pornography against will of a woman; or making sexual coloured remarks are required to be alleged and proved for securing punishment under the section aforesaid. The ingredients of Section 354A I.P.C. are absolutely missing. With the exoneration of the applicant for offence u/s 307 I.P.C., the allegations regarding commission of offence u/s 147, 148, 149 I.P.C. have also been mellowed down. Regarding offences u/s 504 and 506 I.P.C., it appears that they have been levelled with the allegations of rioting. For offence u/s 427 I.P.C., if proved, the applicant can be punished for a non-cognizable and bailable offence which is triable by Magistrate. The photographs cannot be relied upon at this stage since they do not appear to be a part of case diary. No weapon or rioting is shown in the photographs. Only some people are standing and a car with broken glasses is seen. From the photographs, no offence can be attributed except the offence under Section 427 I.P.C., if the photographs are proved before the Court at the relevant stage in accordance with law. In view of the fact that the informant has already filed affidavit rebutting the allegations made in the anticipatory bail application and has also filed the documents in support of his defence, there is no justification for keeping the application pending, as argued by the learned Senior Counsel for the informant.
This Court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. 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.
Admittedly, investigation is underway and the police report has not been submitted as yet.
Without expressing any opinion on the merits of the case and considering the nature of accusation and his antecedents, the applicant is 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.
In the event of arrest, the applicant shall be released on anticipatory bail till cognizance is taken by the Court on the police report, if any, under section 173 (2) Cr.P.C. before the competent Court 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 applicant shall make himself available for interrogation by the police officer as and when required;
(ii) The applicant 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 applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him 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 applicant.
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 applicant.
The applicant is 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.
However, the observations made in this order are only for the purpose of consideration of bail application of the applicant.
Order Date :- 22.1.2021 KS