Court No. - 69
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 19815 of 2021 Applicant :- Rajkumar Purwar Opposite Party :- State Of U.P Thru Secretary Home Lknw. Counsel for Applicant :- Aditya Gupta,Sr. Advocate Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Aditya Gupta, learned counsel for the applicant, Sri Virendra Singh Parmal, learned counsel for the complainant, learned A.G.A. for the State and perused the record.
This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No. 179 of 2021 under section 406 IPC, Police Station Kotwali Nagar, District Hamirpur, during the pendency of the investigation.
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 first information report of this incident was lodged in pursuance of the application given under section 156 (3) Cr.P.C. by the complainant against the present accused Raj Kumar Purwar. It was alleged in the FIR that the complainant and the accused persons are relatives and they have started a business of providing loan to the needy people in 2008. It was further mentioned in the FIR that the business which was started in 2008 continued till 2017 and in 2017 the present accused gave a suggestion to the complainant that they should form a company and start a business. It was mentioned in the FIR that the present accused has formed a company and got registered that company in the Companies Act and the main object of the company was to provide loan in the name of Janta Lakshmi Micro Finance Federation and it was alleged in the FIR that the accused persons had not shown profit of the company and they had taken money from the complainant and his relatives in the name of the company. It was further mentioned in the FIR that the complainant was told by the accused persons that after forming company, they will share the profit of the company but to utter surprise of the complainant they were not given profit of the company. It was further mentioned in the FIR that the complainant was not given the required share in the company despite assurance and it was alleged that the accused persons had taken money from the complainant and has not returned the same and they have committed offence under section 406 IPC.
Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the present case with the ulterior invention of harassing him. He has further submitted that that the FIR has been lodged with the object of injuring or humiliating the applicant by having him so arrested . He has further submitted that the accused not been previously convicted.
Learned A.G.A. as well as learned counsel for the complainant have opposed the prayer for anticipatory bail and it is submitted by the learned counsel for the complainant that the complainant and the accused were doing business of finance since 2008.
After considering the rival submissions, 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 right 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. The learned counsel has also place reliance on the order dated 28.7.2021 passed by the The Hon'ble Apex Court in Special Leave to Appeal (Criminal) No. 5191 of 2021 Satendra Kumar Antil vs. Central Bureau of Investigation, in which the Hon'ble Apex Court has observed that prima facie, we cannot appreciate why in such a scenario is there a requirement for the petitioner being sent to custody.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, considering the gravity of the offence, considering the judgment passed by Hon'ble Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and in the case of Satendra Kumar Antil vs. Central Bureau of Investigation passed in Special Leave to Appeal (Criminal) No. 5191 of 2021 and considering that the accusation might have been made to injure the reputation of the applicant by having him so arrested.
In the event of arrest of the applicant-Rajkumar Purwar shall be released on anticipatory bail 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 with the following conditions:-
1. The applicant shall, at the time of execution of the bond, furnish his address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.
2. The applicant shall not leave the country during the currency of trial/ investigation by police without prior permission from the concerned trial Court.
3. The applicant shall not obstruct or hamper the police investigation and not play mischeif with the evidence collected or yet to be collected by the Investigating Officer of the police;
4. The applicant shall surrender his passport, if any, to the concerned Court/ Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passport, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.
5. That 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 him from disclosing such facts to the Court or to any police officer;
6. The applicant shall maintain law and order.
7. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
8. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government Advocate.
9. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
11. 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.
Order Date :- 20.12.2021 AU Digitally signed by Justice Ajit Singh Date: 2021.12.21 12:02:48 IST Reason: Document Owner Location: High Court of Judicature at Allahabad