Court No. - 36
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9178 of 2021 Applicant :- Rani Opposite Party :- State of U.P.
Counsel for Applicant :- Ashutosh Gupta,Bal Krishna Rai 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 learned counsel for the applicant and Shri Amrit Raj Chaurasia, learned A.G.A. for the State through video conferencing.
The instant anticipatory bail application has been filed with a prayer to grant an anticipatory bail to the applicant, Rani, in Case Crime No.0233 of 2017 U/s 363, 366 IPC P.S. Bheempura Distt. Ballia.
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.
Learned counsel for the applicant has submitted that the applicant has earlier filed Application U/s 482 No.20333 of 2018 (Rani & Anr. v. State of U.P. & Anr.) challenging the charge sheet dated 15.11.2017 and the entire proceeding of Sessions Trial No.541 of 2017 (State v. Kailash Rajbhar & Ors.) arising out of Case Crime No.233 of 2017 under Sections 363, 366, 376D of the Indian Penal Code as also under Section 5/6 POCSO Act, P.S. Bheempura, Distt. Ballia in which this Court had accorded interim order on 4.6.2018 staying further proceeding of the said case. It is contended that consequently the matter was listed on 10.01.2019 and the counsel for the applicant has marked the stay extension on the list of the Hon'ble Court but unfortunately the interim order has not been extended. It is submitted that at this pandemic period it would be unjust to ask the applicant to surrender before the Court. Learned counsel for the applicant makes a statement at Bar that till now the State or the complainant has not filed counter affidavit in the said matter.
Learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case. She has no criminal history to her credit. The applicant has definite apprehension that she may be arrested by the police any time.
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, she 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 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 her. 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 her antecedents and also the second surge in the cases of coronavirus and possibility of further surge of the pandemic, 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 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 applicant shall be released on anticipatory bail for a period of four months from today 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:-
1. The applicant shall, at the time of execution of the bond, furnish her 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 mischief with the evidence collected or yet to be collected by the Investigating Officer of the police;
4. The applicant shall surrender her passport, if any, to the concerned Court/Investigating Officer forthwith. Her passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passports, 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 she shall not seek any adjournment before the trial court on the dates fixed for evidence and when 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/informant/complainant can file bail cancellation application.
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 their bail and proceed against her 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.
12. The applicant is warned not to get herself implicated in any crime and should keep distance from the informant and not to misuse the liberty granted hereby. Any misuse of liberty granted by this Court would be viewed seriously against the applicant in further proceedings.
This anticipatory bail application is being allowed on account of special conditions and on special ground. The normal grounds, settled for the grant of anticipatory bail, have not been considered by this Court and it would be open for the applicant to approach this Court again, if so adviced, in changed circumstances.
Meanwhile, the applicant may be at liberty to move stay extension application and press the same in the aforementioned Application U/s 482 No.20333 of 2018 (Rani & Anr. v. State of U.P. & Anr.).
The anticipatory bail application is allowed accordingly.
Order Date :- 17.5.2021 SP/