Court No. - 69
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 20024 of 2021 Applicant :- Vipin Kumar Tiwari @ Chhotu And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Pratap Rao Counsel for Opposite Party :- G.A.
Hon'ble Ajit Singh,J.
Heard learned counsel for the applicants and learned A.G.A.
The instant anticipatory bail application has been filed on behalf of the applicant with a prayer to release them on anticipatory bail in Case Crime No.518 of 2019, under Section 342, 452, 504, 506 I.P.C., Police Station Chakeri, district Kanpur Nagar, during pendency of investigation/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.
The first information report of this incident was lodged by the complainant against the applicant and four-five unknown persons. It was alleged in the first information report that the applicant along with his companion had harassed the complainant and threatened her with dire consequences. It was also alleged that once he entered the house of the complainant and tried to commit marpit with her.
Learned counsel for the applicants submits that applicants are innocent and have falsely been implicated in the present case. He submitted that the applicants have not committed any crime. They are only the caretaker of the disputed land. He submitted that the present applicant and Bhagwati Prasad are involved in litigation and just to create pressure, the applicants have been nominated in this case. He submitted that the matter is pending since 14.06.2019 and police has not arrested the applicants. He submitted that first information report has been lodged with an object to injure the reputation of the applicants by having them so arrested. He submitted that no proceedings under Sections 82 and 83 Cr.P.C. have been initiated against the applicants. He submitted that charge sheet has not been filed till date. He submitted that applicants undertake to cooperate during investigation and they will not tamper with the evidence in any way.
Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant.
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 them. After 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 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. The learned counsel has also place reliance on the order dated 28.7.2021 passed by the The Hon'ble Apex Court in Special Leave to Appeal (Criminal) No. 5191 of 2021 Satendra Kumar Antil vs. Central Bureau of Investigation, in which the Hon'ble Apex Court has observed that prima facie, we cannot appreciate why in such a scenario is there a requirement for the petitioner being sent to custody.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicants, considering that accusation might have been lodged with the object of injuring the reputation of the applicants by having them so arrested, considering the judgment passed by Hon'ble Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and in the case of Satendra Kumar Antil vs. Central Bureau of Investigation passed in Special Leave to Appeal (Criminal) No. 5191 of 2021.
In the event of arrest, the applicants shall be released on anticipatory bail.
Let the applicants Vipin Kumar Tiwari @ Chhotu, Deepak Dixit and Nihal Dixit involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the trial court/ Investigating Officer concerned with the following conditions:-
1. The applicants shall, at the time of execution of the bond, furnish their 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 applicants shall not leave the country during the currency of trial/ investigation by police without prior permission from the concerned trial Court.
3. The applicants 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 applicants shall surrender their passport, if any, to the concerned Court/ Investigating Officer forthwith. Their passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case they have no passport, they will file their affidavit before the Court/ Investigating Officer concerned in this regard.
5. That the applicants 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 applicants shall maintain law and order.
7. The applicants shall file an undertaking to the effect that they 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 applicants 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.
Order Date :- 24.12.2021 R./