1. Heard Sri Gopal Swarup Chaturvedi, learned Senior Counsel assisted by Sri Shishir Tandon, learned counsels for the applicant; Sri Sikandar B. Kochar, learned counsel for the informant and learned A.G.A for the State.
2. The instant anticipatory bail application has been filed on behalf of the applicant, Shankhdhar Dwivedi, with a prayer to release him on bail in Case Crime No. C-37 of 1997, under Sections- 364, 304 and 506 IPC, Police Station- Phoolpur, District- Varanasi, during pendency of trial.
3. The allegation in the FIR is that when the applicant was posted as Sub-Inspector, Police Station- Kotwali, District- Shahdol (M.P.). He arrested one, Om Prakash Gupta @ Gorakhnath, in District- Shahdol (M.P.) in connection with the present case. The aforesaid accused died in the lock-up. It was alleged in the FIR lodged after proceedings under Section 156(3) Cr.P.C that the apprehended accused was murdered by the police in lock-up.
4. Learned Senior Counsel for the applicant has submitted that the deceased died on account of severe heart attack while in police custody. After due investigation final report was submitted in favour of the applican. On protest petition the applicant was summoned on 05.06.2007 for committing the offence under Sections 364, 304 and 506 IPC. He has submitted that the offence under Section 364 IPC is not at all made out against the applicant since the apprehended accused died due to heart attack after arrest in police custody. He was arrested in due discharge of official dues by the applicant and was not kidnapped or abducted for the purpose of murder. The applicant was summoned and a Criminal Misc. Application u/S 482 Cr.P.C 22539/2007 was preferred by co-accused, R.Rajan wherein the proceedings of the entire case was stayed. The applicant also preferred a Criminal Misc. Application under Section 482 No. 24013 of 2007 and other co-accused persons preferred Criminal Misc. Application u/S 482 No. 24145 of 2007 which was connected with the application filed by R.Rajan. Thereafter the matter was heard but could not be decided and during pendency of the aforesaid applications, the informant approached the Hon'ble Supreme Court by way of Special Leave to Appeal No. 8 of 2018 which was decided on 23.09.2020 directing the trial court to conclude the trial on day to day basis within a period of one year. He submits that no notice was ever served on him regarding the SLP filed before the Apex Court and on coming to know of the order he filed an anticipatory bail application before the court below. It was rejected by the Court below, hence he is before this Court. Finally, learned Senior Counsel has assured that the applicant will cooperate with the trial and his interests may be protected.
5. Learned counsel for the informant has vehemently opposed this bail application. He submits that despite order of the Apex Court that applicant is not appearing before the trial court. His non-cooperation in causing delay in conclusion of trial. In case applicant is granted anticipatory bail he will never appear before the trial Court the cause of justice would suffer.
6. Learned AGA 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.
7. 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 FIR 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 FIR 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 peculiar case the arrest of an accused should be made.
8. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
9. In the event of arrest, the applicant, shall be released on anticipatory bail. Let the applicant involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
1. The applicant will ensure his presence before the Court as an when required to be personally present. He will not seek adjournment when his presence is required in compliance with the order dated 23.09.2020 passed by the Hon'ble Apex Court in S.L.P. No. 5 of 2018.
2. The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
3. The applicant shall surrender his passport, if any, before the concerned Court forthwith. His passport will remain in custody of the concerned Court.
4. 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;
5. 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.
6. 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.
7. 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.
8. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
9. 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:- 03.02.2021 Rohit