Court No. - 64
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4810 of 2021 Applicant :- Shyam Babu Pushkar Opposite Party :- State of U.P.
Counsel for Applicant :- Narendra Singh Chahar Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicant and learned AGA for the State.
The instant anticipatory bail application has been filed on behalf of the applicant, Shyam Babu Pushkar, with a prayer to release him on bail in Case Crime No. 214 of 2017, under Sections 420, 409, 467, 468, 471 I.P.C. and Section 13(1) and 13(2) Prevention of Corruption Act, P.S. Hariparvat, district-Agra, during pendency of trial.
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.
It is contended by learned counsel for the applicant that the applicant was posted as Assistant Development Officer (social welfare), vikas Khand Baroli, Agra in the year 2009-10 and has been retired from service in the year 2015. The incident is alleged to have taken place in 2009-10 and the report of this incident was lodged in the year 2017. He next contended that the applicant was not arrested during investigation and the chargesheet was submitted against him. The applicant was earlier granted anticipatory bail with a direction that he shall not be arrested till the submission of police report under Section 173(2) Cr.P.C. The chargesheet has been filed after the grant of anticipatory bail. The applicant has definite apprehension that he may be arrested by the police any time.
Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that the chargesheet has been submitted in the matter on 12.9.2020. Cognizance has been taken on 17.9.2020 issuing summons to the applicant. He did not turn up before the court concerned. Thereafter, non-bailable warrant was issued against the applicant, 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.
In reply, learned counsel for the applicant has contended that after issuing non-bailable warrant, he could not appear before the court below due to illness. He also contended that applicant has challenged the chargesheet filed against him by way of an application U/s 482 Cr.P.C. No. 19680 of 2020, which was disposed of by this Court vide order dated 5.1.2021 with a direction that the applicant shall not be arrested till the submission of police report under Section 173(2) Cr.P.C.
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.
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.
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 shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
2. The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.
3. 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;
4. 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.
5. 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.
6. 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.
7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
8. 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 :- 12.8.2021 Faridul Digitally signed by Justice Ajit Singh Date: 2021.08.19 13:07:29 IST Reason: Document Owner Location: High Court of Judicature at Allahabad