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 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,Shikha Maheshwari,in Case Crime No. 833 of 2020, under Sections- 498-A, 323, 506, 377 I.P.C and Section 3/4 of Dowry Prohibition Act, Police Station- Kasganj, District-Kasganj.
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.
As per officereport dated 17.03.2021notice onoppositeparty no. 2 has been served but no one has put inappearance.
FIR has been lodgedby Smt. Laxmi Maheshwari, wife of co-accused, Mayank Maheshwari, alleging that co-accused, Mayank Maheshwari, married the informant on 09.12.2010 without informing that the applicant was earlier married to the co-accused, Mayank Maheshwari. It isalleged that theapplicant was called by co-accused, Mayank Maheshwari, in his house on 01.11.2020 for the purpose of mental and physical harassment of the informant. The applicant alongwith other co-accused abused andbeaten her.
Counsel for the applicant has submitted that absolutely false allegations have been made in the FIR. After getting divorce from the applicant, co-accused, Mayank Maheshwari, married the informant, Laxmi Maheshwari. On account of disputebetween the couple, the applicant has been implicated in this case falsely alongwith other co-accused persons, who are the family members of co-accused, Mayank Maheshwari.She is innocent and had no occasion to harass the informant for dowry. She is stranger to thedispute. 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 her 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.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant and also the second surge in the cases of novel coronavirus and possibility of further surge of the pandemic, she 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.
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/ Investigating Officer concerned 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 mischeif 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 she has no passport, she will file her 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 her 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 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/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 her 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.
Order Date :- 16.4.2021 Rohit