AFR
Court No. - 64
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13155 of 2021 Applicant :- Sumit Sharma Opposite Party :- State of U.P.
Counsel for Applicant :- Ashutosh Kumar Tiwari,Surendra Nath Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the entire record.
This anticipatory bail application has been filed on behalf of the applicant seeking anticipatory bail in Case Crime No. 0146 of 2021, under Sections - 342, 384, 389, 120-B I.P.C. & Section 7 of Anti-Corruption Act-1988, Police Station - Phase-3, NOIDA, District - Gautam Buddha Nagar, during the pendency of trial.
The report of this incident was got registered by the complainant Maju Chauhan against the seven named police officials including the present applicant Constable Sumit Sharma who was on police duty in the company of Sub Inspector Chetan Prakash Tomar on 20.2.2021 and it was alleged in the FIR that the accused sub-inspector, while performing his duties went to the office of the informant along with his companions in plain dress to investigate the cyber crime matter and took away three personnel working in the office of the informant for investigation. In the meanwhile, the informant, who is a history sheeter, set up a false case that bribe was being demanded by the co-accused (sub-inspector) on phone. The informant gave Rs. 2 lakhs to him, but he was asking for more. This much is the crux of the information and a case was lodged against the police officials including the present applicant but there is no proof about any phone number by which the call was made. It is submitted by the learned counsel for the applicant that there is no specific allegation against the present applicant and he has been nominated in this case only because he was on duty with co-accused Sub-Inspector namely Chetan Prakash Tomar and other police officials. It is also submitted that the present applicant has an unblemished service record. It is also submitted by the learned counsel that there is no evidence on record to show the complicity of the present applicant in the alleged crime in question. The applicant is a government servant working in the Cell of Cyber Crime and always rendered his duties with full dedication and sincerity.
It is also submitted that the FIR version itself belies the accusation made in the FIR. Further there is no detail of any money being taken by the applicant or any police personnel of his office and no proof is available in support of the claim. It is also submitted by the learned counsel for the applicant that only on the basis of the allegations made in the FIR of commission of a non-bailable offence cannot snatch the right of life and liberty guaranteed to citizens under Article 21 of the Constitution of India and in pursuance of the FIR the applicant has sufficient reason to apprehend that he may be arrested by the police anytime.
It is also submitted by the learned counsel for the applicant that the applicant deserves anticipatory bail on the ground of the parity with co- accused Chetan Prakash Tomar who has already been granted an ad- interim relief in the form of anticipatory bail by another Bench of this Court, vide order dated 29.07.2021, passed in anticipatory bail No. 13054 of 2021. It is also argued that the role assigned to the present applicant was similar to the role assigned to co-accused Constable Sumit Pawla @ Sumit Kumar who also been granted ad-interim relief in the form of anticipatory bail by this Court in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 13680 of 2021, vide order dated 04.08.2021 and both the matters of co-accused Chetan Prakash Tomar as well as Sumit Pawla @ Sumit Kumar are fixed for final hearing on 28.08.2021 as fresh.
The submission made by learned counsel for the applicant, prima facie, appears to have some substance.
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, 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.
This Court is well aware of the fact that the right to life guaranteed under Article 21 of the Constitution of India is paramount and by mere implication in a case of alleged commission of non-bailable offence, right to life of an accused person can not be put to peril. The allegations may be serious against an accused but the presumption of innocence in his favour cannot be dispelled only on the basis of the allegations in the FIR. An accused who has not been subjected to trial and not even police investigation has been completed against him in many cases, cannot be compelled to surrender and obtain regular bail.
The Apex Court in the case of Gurubaksh Singh Sibbia, etc., vs. State of Punjab, 1980 AIR 1632 was also conscious of the fact that the future is so unpredictable that no fixed criteria can be laid down for the grant or rejection of anticipatory bail of an accused by the High Court or the Court of Session. It was held by the Apex Court that the High Court and the Court of Session are competent to deal with the case as per their knowledge and experience. It further held that the legislature conferred wide discretion on the High Court and the Court of Session to grant anticipatory bail because it felt that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and the Courts were given free hand in this regard. Departing from the terms of Sections 437 and 439 Cr.P.C., Section 438 (1) Cr.P.C., provides discretion to this Court in the grant or rejection of anticipatory bail application.
It is important to mention here that Section 438 (2) Cr.P.C provides for the conditions to be imposed while granting anticipatory bail in cases, the Court deems fit. However, the conditions are not exhaustive and leave it open for the Court to impose other conditions apart from the conditions given in the section aforesaid. Section 438 (5) Cr.P.C., clearly provides that the application for grant of anticipatory bail shall be decided within 30 days of the filing of application. Section 438 (7) provides that if an application for grant of anticipatory bail has been filed by any person before the High Court, no such application shall be entertained by the Sessions Court. Therefore, as per the doctrine of selection of remedies, when an application for grant of anticipatory bail is made to this Court, it expressly bars entertainment of the same by the Court of Session. The aforesaid section does not leaves any room for any controversy regarding filing of anticipatory bail application either before the High Court or before the Court of Session as per 438 (7) Cr.P.C., U.P. Amendment. A literal construction of the aforesaid Section 438 (7) Cr.P.C shows that there is no requirement of giving any special or compelling reason to approach this Court for grant of anticipatory bail without approaching the Court of Session. Once a person has chosen to approach this Court praying for grant of anticipatory bail, by operation of law, his opportunity to approach the Sessions Court gets extinguished. Therefore, he incurs disadvantage by choosing to abdicate his remedy before the Court of Session. Where the statute clearly provides the option for choosing a remedy and the applicant chooses one such remedy he cannot be compelled to disclose reasons why he has chosen such a remedy, when the statute does not requires the same to be stated.
The Apex Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi) - 2020 SCC Online SC 98, has also held that whether to grant an anticipatory bail or reject the same is a matter of discretion of the Court and it is for the Court to decide, on the basis of the facts and circumstances of the case, what course is to be adopted. No formula has been laid down by the five Judges Bench of the Hon'ble Supreme Court regarding grant or denial of anticipatory bail.
This Court is also aware that the legislature, in its wisdom, left it open for the Courts to apply the law of anticipatory bail as per the facts of the case and the circumstances involved therein.
It would also not be out of context to mention here that the law is a dynamic concept and it is required to be interpreted as per the requirements of time. With the change in the requirements of time, the interpretation and application of law is required to be adopted with change. The law of anticipatory bail is founded only on the apprehension of arrest. The apprehension may be of pre-recording or post-recording stage of the FIR. Here, in this case the apprehension of the applicant that he may be arrested in pursuance of the FIR, appears to be correct and a case of anticipatory bail is made out.
In view of the above discussion, the anticipatory bail is allowed finally, and this Court hereby directs that the applicant, in case of his arrest, shall be enlarged on anticipatory bail for the limited period, till 03 of January, 2022 on 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 mischief 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 his 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 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 her 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.
12. The applicant is warned not to get himself 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.
Order Date :- 13.8.2021 LBY