Allahabad High Court
Tirath Singh Alias Jeet Singh vs State Of U.P. on 21 March, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:51327 Court No. - 74 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2641 of 2024 Applicant :- Tirath Singh Alias Jeet Singh Opposite Party :- State of U.P. Counsel for Applicant :- Krishna Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Krishna Kumar Singh, learned counsel for the applicant and Sri Ajay Singh, learned AGA-I for the State and perused the record.
3. The anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicant Tirath Singh Alias Jeet Singh, seeking anticipatory bail, in the event of arrest in R.B.T. No. 30 of 2024 in Case Crime No. 386 of 2018 in Case No. 2356 of 2019, under Sections 498-A, 304-B IPC and Section 4 D.P. Act, Police Station Naugawan Sadat, District Amroha.
4. The First Information Report of the matter was lodged on 23.11.2018 by Sarvesh Chandra against the applicant and four other persons. The matter was investigated and a final report dated 26.02.2019 was filed by the police against the accused persons. A protest petition against the same dated 10.04.2019 was filed by the informant, the final report reached the court of CJM concerned on 04.04.2019 notice was issued to the first informant. Subsequently after considering the same, the applicant and other co-accused persons were summoned vide order dated 10.04.2019 for offences under Sections 498-A, 304-B IPC and Section 3/4 of D.P. Act. Since then the applicant despite summons did not appear before the trial court and thus the trial court vide its order dated 03.04.2019 issued bailable warrants against accused persons. Even then the accused persons did not appear before the trial court and then vide order dated 04.09.2019 non bailable warrants issued against the accused persons. In the meantime, co-accused Anshu Deewakar appeared before the trial court and applied for bail which was rejected subsequent to which he was granted bail by a co-ordinate Bench of this Court vide order dated 14.11.2019 passed in Crl. Misc. Application Bail Application No. 49031 of 2019 (Anshu Deewakar Vs. State of U.P.) and Jaiwati the mother-in-law of the deceased was also granted bail vide order dated 10.12.2020 by a co-ordinate Bench of this Court passed in Crl. Misc. Bail Application No. 46124 of 2020 (Jaiwati Vs. State of U.P.), copy of the orders are annexed as annexure 8 and 9 respectively. The four other co-accused persons filed Crl. Misc. Application U/s 482 No. 35185 of 2019 (Anshu Kumar Diwakar and 3 others Vs. State of U.P. and another) in which non bailable warrants issued against them were directed to be kept in abeyance particularly with regards to the applicant no.3 therein Smt. Vatika vide order dated 11.10.2022, the said order subsequently extended vide order dated 16.11.2022.
5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant has filed an application for discharge under Section 239 Cr.P.C. dated 30.12.2019 along with another co-accused namely Smt. Vatika which is till date pending for disposal before the trial court. It is submitted that the applicant has not absconded and filing of the discharge application immediately thereupon would go to show that he has joined the proceedings of the trial. It is submitted that the applicant be granted anticipatory bail.
6. Per contra, learned counsel for the State opposed the prayer for anticipatory bail and argued that the applicant has been avoiding the process of law since 2019, it is about five years. It is argued that initially summons, then bailable warrants and then non bailable warrants have been issued against the applicant but despite the same he has failed to appear before the trial court and in between without appearance before the trial court and without appearing at the time of filing discharge application, the said discharge application has been filed which would not be maintainable. It is submitted that looking to the long abscondence of the applicant, the anticipatory bail application be rejected.
7. After having heard the counsels for the parties and perusing the records, it is evident that the applicant is named in the FIR lodged on 23.08.2018. In the matter after investigation, final report was submitted in favour of the accused persons on which a protest petition was filed by the informant after which vide order dated 10.04.2019 the applicant and other accused persons were summoned and the said final report was rejected. The case was directed to proceed against them as a State case. The summons issued to the applicant were not responded by the applicant and then bailable warrants were issued. He even did not respond to the said bailable warrants and then non bailable warrants were issued against him. Although he has filed an application for discharge along with one other accused person but he did not appear before the trial court since the year 2019. He has been absconded till date. Proceedings under Section 82 Cr.P.C. are also stated to have been initiated against the applicant as per instructions of learned counsel for the State.
8. In the case of Srikant Upadhyay & Ors. Versus State of Bihar & Anr. : Special Leave Petition (Crl.) No. 7940 of 2023, decided on March 14, 2024 : 2024 INSC 202 the Apex Court while dealing with an absconder and whether to grant him anticipatory bail held that at any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power for grant of anticipatory bail. It has been further held that person(s) continuously, defying orders and keep absconding is not entitled to such grant. It has been held as under:"3. The question of seminal importance that arises for consideration can better be explained and understood by referring to a decision of this Court in Prem Shankar Prasad v. State of Bihar and Anr.; (2022) 14 SCC 516, which was rendered after referring to the earlier decisions of this Court in State of Madhya Pradesh v. Pradeep Sharma; (2014) 2 SCC 171 and Lavesh v. State (NCT of Delhi); (2012) 8 SCC 730. In Lavesh's case (supra), this Court held in paragraph 12 thus: -
"12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."
(Underline supplied)
9. In the decision in Pradeep Sharma's case (supra) this Court held that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 Cr.PC., he is not entitled to relief of anticipatory bail. After extracting Section 438, Cr.PC., it was further held therein thus:-
"The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty."
10. In Prem Shankar Prasad's case (supra), this Court took note of the fact that the respondent-accused was absconding and concealing himself to avoid service of warrant of arrest and the proceedings under Sections 82/83, Cr.PC have been initiated against him, set aside the order of the High Court granting anticipatory bail ignoring the proceedings under Sections 82/83, Cr.PC. Thus, it is obvious that the position of law, which was being followed with alacrity, is that in cases where an accused against whom non-bailable warrant is pending and the process of proclamation under Sections 82/83, Cr.PC is issued, is not entitled to the relief of anticipatory bail.
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11. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under Section 438, Cr. PC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr.; 2010 (1) SCC 679).
12. When a Court grants anticipatory bail what it actually does is only to make an order that in the event of arrest, the arrestee shall be released on bail, subject to the terms and conditions. Taking note of the fact the said power is to be exercised in exceptional circumstances and that it may cause some hinderance to the normal flow of investigation method when called upon to exercise the power under Section 438, Cr.PC, courts must keep reminded of the position that law aides only the abiding and certainly not its resistant. By saying so, we mean that a person, having subjected to investigation on a serious offence and upon making out a case, is included in a charge sheet or even after filing of a refer report, later, in accordance with law, the Court issues a summons to a person, he is bound to submit himself to the authority of law. It only means that though he will still be at liberty, rather, in his right, to take recourse to the legal remedies available only in accordance with law, but not in its defiance. We will dilate this discussion with reference to the factual matrix of this case. However, we think that before dealing with the same, a small deviation to have a glance at the scope and application of the provisions under Section 82, Cr.PC will not be inappropriate.
13. There can be little doubt with respect to the position that the sine qua non for initiation of an action under Section 82, Cr. PC is prior issuance of warrant of arrest by the Court concerned. In that regard it is relevant to refer to Section 82 (1), Cr. PC, which reads thus: -
"82. Proclamation for person absconding. ? (1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation."
14. The use of expression 'reason to believe' employed in Section 82 (1) Cr. PC would suggest that the Magistrate concerned must be subjectively satisfied that the person concerned has absconded or has concealed himself. In the context of Section 82, Cr. PC, we will have to understand the importance of the term 'absconded'. Its etymological and ordinary sense is that one who is hiding himself or concealing himself and avoiding arrest. Since the legality of the proceedings under Section 82, Cr. PC is not under challenge, we need not go into that question. As noticed above, the nub of the contentions is that pending the application for pre-arrest bail, proclamation under Section 82, Cr.P.C., should not have been issued and at any rate, its issuance shall not be a reason for declining to consider such application on merits. Bearing in mind the position of law revealed from the decisions referred to hereinbefore and the positions of law, we will briefly refer to the factual background of the case.
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15. Bearing in mind the aforesaid provisions and position, we will refer to certain relevant decisions. In Savitaben Govindbhai Patel & Ors. v. State of Gujarat; 2004 SCC OnLine Guj 345, the High Court of Gujarat observed thus: -
"9. Filing of an Anticipatory Bail Application by the petitioners-accused through their advocate cannot be said to be an appearance of the petitioners-accused in a competent Court, so far as proceeding initiated under Section 82/83 of the Code is concerned; otherwise each absconding accused would try to create shelter by filing an Anticipatory Bail Application to avoid obligation to appear before the court and raises the proceeding under Section 83 of the Code claiming that he cannot be termed as an absconder in the eye of law. Physical appearance before the Court is most important, if relevant scheme of Sections 82 and 83, is read closely."
(underline supplied)
16. We are in full agreement with the view taken by the Gujarat High Court that filing of an anticipatory bail through an advocate would not and could not be treated as appearance before a court by a person against whom such proceedings, as mentioned above are instituted. The meaning of the term "absconded" has been dealt by us hereinbefore. We found that its etymological and original sense is that the accused is hiding himself. What is required as proof for absconding is the evidence to the effect that the person concerned was knowing that he was wanted and also about pendency of warrant of arrest. A detailed discussion is not warranted in this case to understand that the appellants were actually absconding. It is not in dispute that they were served with the "summons". The fact that bailable warrants were issued against them on 12.04.2022 is also not disputed, as the appellants themselves have produced the order whereunder bailable warrants were issued against them. We have already referred to Section 70 (2), Cr. PC which would reveal the position that once a warrant is issued it would remain in force until it is cancelled by the Court which issued it or until its execution. There is no case for the appellants that either of such events had occurred in this case to make the warrants unenforceable. They also got no case that their application was interfered with by a higher Court. That apart, it is a fact that the appellants themselves on 23.08.2022, moved a bail-cum-surrender application before the Trial Court but withdrew the same fearing arrest. It is also relevant to note that in the case on hand even while contending that they were before a Court, the appellants got no case that in terms of the provisions under Section 438 (1-B), Cr. PC an order for their presence before the Court was ordered either suo motu by the Court or on an application by the public prosecutor. When that be the circumstance, the appellants cannot be allowed to contend that they were not hiding or concealing themselves from arrest or that they were not knowing that they were wanted in a Court of law.
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17. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant."
(emphasis supplied)
18. Looking to the facts of the case and also the judgment of the Apex Court as stated above, I do not find it to be a fit case for interference.
19. Accordingly, the anticipatory bail application is rejected.
Order Date :- 21.3.2024 M. ARIF (Samit Gopal, J.)