Allahabad High Court
Manoj Gupta @ Manoj Kumar Gupta vs State Of U.P. And Another on 28 March, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 65 Case :- APPLICATION U/S 482 No. - 706 of 2021 Applicant :- Manoj Gupta @ Manoj Kumar Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shashank Tripathi,Atharva Dixit,Manish Tiwary(Senior Adv.) Counsel for Opposite Party :- G.A.,Manish Tandon,Rakesh Dubey With Case :- APPLICATION U/S 482 No. - 19101 of 2020 Applicant :- Asim @ Pappu Smart Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ramesh Chandra Agrahari,Anoop Trivedi (Senior Adv.) Counsel for Opposite Party :- G.A.,Rakesh Dubey Hon'ble Rajeev Misra,J.
1. Heard Mr. Anoop Trivedi, the learned senior counsel assisted by Mr. Ramesh Chandra Agrahari, the learned counsel for applicant-Asim @ Pappu Smart, Mr. Sayed Imran Ibrahim, the learned counsel for applicant- Manoj Gupta @ Manoj Kumar Gupta, Mr. Manuraj Singh along with Mr. Prashant Kumar, the learned A.G.A. for State and Mr. Rakesh Dubey, the learned counsel representing first informant/opposite party-2 in both the applications.
2. Perused the record.
3. Mr. Sayed Imran Ibrahim, the learned counsel for applicant- Manoj Gupta @ Manoj Kumar Gupta submits that the application filed by aforesaid applicant has been rendered infructuous by efflux of time. As such, on instructions received by him, he does not wish to press the application.
4. Learned A.G.A. for state and Mr. Rakesh Dubey, the learned counsel representing first informant/opposite party-2 have no objection to the prayer made by learned counsel for applicant-Manoj Gupta @ Manoj Kumar Gupta.
5. Consequently, Application under 482 Cr.P.C. No. 706 of 2021 (Manoj Gupta @ Manoj Kumar Gupta Vs. State of U.P. and another) is dismissed as having rendered infructuous.
6. Criminal Misc. Application under section 482 Cr.PC No. 19101 of 2020 (Asim @ Pappu Smart Vs. State of U.P. and another) has been filed by applicant Asim @ Pappu Smart challenging the order dated 01.10.2020 passed by Chief Metropolitan Magistrate, Kanpur Nagar in Criminal Case No. 15681 of 2020 (State Vs. Mohd. Asif @ Pappu Smart and Others) under Sections 147, 148, 149, 307, 302, 34, 120B IPC and Section 7 Criminal Law Amendment Act, Police Station-Chakeri, District-Kanpur Nagar, arising out of Case Crime No. 425 of 2020 (State Vs. Mohd. Asim @ Pappu Smart) under Sections 147, 148, 149, 302, 34, 307, 120-B I.P.C. and Section 7 Criminal Law (Amendment) Act, Police Station Chakeri, District-Kanpur Nagar, whereby the application for default bail filed by applicant has been rejected. Consequently, applicant, who is in custody, has been denied default bail.
7. Record shows that in respect of an incident, which is alleged to have occurred on 20.06.2020, a prompt F.I.R. dated 20.06.2020 was lodged by first informant/opposite party-2, Dharmendra Singh Sengar and was registered as Case Crime No. 425 of 2020 (State Vs. Mohd. Asim @ Pappu Smart) under Sections 147, 148, 149, 302, 34 I.P.C. and Section 7 Criminal Law (Amendment) Act, Police Station Chakeri, District-Kanpur Nagar. In the aforesaid F.I.R., six persons, namely, Mohd. Asif @ Pappu Smart, Saud Akhtar, Deenoo Upadhyay, Aridaman Singh, Mahfooz Akhtar and Manoj Gupta have been nominated as named accused, whereas certain unknown persons have also been arraigned as accused.
8. The gravamen of the allegations made in the F.I.R is to the effect that named accused alongwith their associates conspired/committed the crime in question by using firearm on account of which, one Pintoo Sengar sustained firearm injury and died on the spot.
9. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of above-mentioned case crime number in terms of Chapter XII Cr.P.C. He first took possession of the dead body of the deceased and accomplished the preliminary formality. Thereafter, a detailed police scroll was prepared and the dead body of the deceased was dispatched for postmortem on 20.06.2020. Accordingly, post-mortem of the body of deceased was conducted on the same day i.e. on 20.06.2020. In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and hemorrhage as a result of ante-mortem firearm injuries
10. Subsequent to above, Investigating Officer proceeded to undertake other formalities. Attempts were made to secure the arrest of named accused. Information appears to have been received by Investigating Officer that applicant, who is a named accused in concerned case crime number, is residing at Chindwara, Madhya Pradesh, Accordingly, Commissioner of Police, Commissionerate Kanpur Nagar constituted a police team, which went to Chhindwara, Madhya Pradesh to secure the arrest of accused-applicant. On 01.07.2020 applicant was arrested by U.P. Police at Chhindwara, Madhya Pradesh but produced before remand Magistrate at Kanpur Nagar on 03.07.2020 i.e. after an expiry of a period of 24 hours from the time of his arrest.
11. In the aforesaid background, applicant filed his bail application in terms of Section 167 (2) Cr.PC. claiming default bail before the Chief Judicial Magistrate, Kanpur Nagar primarily on the grounds that since the charge-sheet has been submitted beyond the period of 90 days from the date of the arrest of applicant i.e. 01.07.2020, therefore, he is liable to be enlarged on bail by default. In support of above, it was further stated that the applicant was arrested on 01.07.2020 at Chindwara, Madhya Pradesh. However, applicant was produced before the remand Magistrate on 03.07.2022 at Kanpur Nagar i.e. after an expiry of more than 24 hours from the time of his arrest which is illegal. Consequently, the detention of applicant after expiry of 24 hours from the time of his arrest is illegal. As the detention of applicant beyond 24 hours is illegal his subsequent detention after the order of remand passed by concerned Magistrate is also illegal. The remand order passed by concerned Magistrate on 03.07.2022 will not wipe out the aforesaid illegality which came into existence on account of the failure of the prosecution to act diligently by producing the applicant before the remand Magistrate within aforesaid period. The prosecution cannot be permitted to derive benefit from it's own wrong by placing reliance upon the order of remand passed by remand Magistrate and on basis thereof contend that the irregularity, if any, in the detention of applicant shall be wiped out with the passing of the remand order by the remand Magistrate. Consequently, applicant is entitled to be released on bail by default.
12. Prayer made by applicant did not find favour with the court below. Concerned Magistrate concluded that since applicant was produced before remand Magistrate on 03.07.2022, the period of 90 days shall be counted from the next date i.e. 04.07.2020. Since the charge sheet has been submitted against applicant on 01.10.2020 which is before the expiry of a period of 90 days from the date subsequent to the order of remand, therefore, applicant is not entitled to be enlarged on default bail. Consequently, concerned Magistrate declined bail by default to applicant by means of impugned order dated 01.10.2020.
13. Thus feeling aggrieved by above, applicant has now approached this Court by means of present application under Section 482 Cr.P.C.
14. Present application was vehemently opposed by Mr. Rakesh Dubey, the learned counsel for first informant and the learned A.G.A.. Referring to the material on record, the learned counsel for first informant submits that it is clearly recorded in the case diary that applicant was arrested at Kanpur on 03.07.2020 and thereafter produced before remand Magistrate on 03.07.2020. Since the charge-sheet has been submitted against applicant on 01.10.2020 i.e. before expiry of a period of 90 days from the date succeeding 03.04.2020, therefore, applicant is not entitled to claim default bail.
15. Learned A.G.A. has also opposed the present application.
16. After hearing the respective counsel for the parties on 17.01.2023, this Court came to the conclusion that there is a serious dispute between the parties regarding the date and place of arrest of applicant. Accordingly, Court passed the following order:
"Supplementary affidavit filed by Mr. Rakesh Dubey, learned counsel representing opposite party no.2 in court today is taken on record.
Heard Mr. Anoop Trivedi, the learned Senior Counsel assisted by Sri Ramesh Chandra Agrahari, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rakesh Dubey, the learned counsel representing first informant-opposite party no.2.
This is an application for default bail. One of the issue that has cropped up during the course of hearing for default bail is regarding the date of arrest of the accused-applicant. According to the learned Senior Counsel, the accused was arrested on 01.07.2020 at District Chindwara, Madhya Pradesh. The document evidencing the aforesaid fact are on record as Annexures 4, 5, 6 and 7 to the affidavit as well as the information received under the RTI Act, copy of which is on record as Annexure RA-1 to the rejoinder affidavit to the counter affidavit filed by State.
In the counter affidavit filed by the State with reference to the case diary, it has been averred in paragraph 10 that the applicant was arrested on 03.07.2020 at Kanpur. However, there is no document accompanying the counter affidavit filed by the State regarding above.
From perusal and evaluation of the material on record as noted hereinabove, there is a serious dispute between the parties regarding the date of arrest of the accused-applicant. Since the right to default bail is being canvassed before this Court, therefore the date of arrest has to be categorical and specific by this Court. In view of the conflicting claims and counter claims of the parties, it is hereby directed that the Commissioner of Police Commissionerate, Kanpur shall file his personal affidavit with regard to the actual date and place of arrest of the applicant with reference to the material on record that is Annexures 4, 5, 6 and 7 to the affidavit as well as Annexure RA-1 to the rejoinder affidavit filed by applicant to the counter affidavit filed by State.
Let the requisite supplementary affidavit be filed on or before 24.01.2023.
Matter shall reappear as unlisted on 30.01.2023 at 2:00 PM.
Copy of the order be supplied to the learned A.G.A. for compliance during course of the day.
Order Date :- 17.1.2023 "
17. Pursuant to above order dated 17.01.2023, Commissioner of Police, Police Commissionarate, Kanpur Nagar constituted a three member Special Investigating Team i.e. SIT to examine the matter and submit its report. The SIT so constituted submitted its report dated 03.02.2023. The copy of same has been brought on record by means of a compliance affidavit on behalf of Commissioner of Police, Police Commissionerate, Kanpur Nagar filed by the learned A.G.A in Court.
18. Perusal of the aforesaid report submitted by the SIT clearly goes to show that the applicant was arrested at Chhindwara, Madhya Pradesh on 01.07.2020 but produced before the remand Magistrate at Kanpur Nagar on 03.07.2020 i.e. beyond 24 hours of his arrest.
19. In view of the above noted factual position, that has emerged before this Court, Mr. Anoop Trivedi, the learned senior counsel for applicant has urged that since arrest of applicant was made on 01.07.2020 but applicant was produced before remand Magistrate after expiry of 24 hours i.e. on 03.07.2020, which is manifestly illegal in view of Section 57 Cr.P.C. He, therefore, submits that police custody of applicant after expiry of 24 hours from the date and time of arrest of applicant is illegal. The order of remand passed by remand Magistrate dated 03.07.2020 purported to be in exercise of jurisdiction under Section 167(2) Cr.P.C. will not wipe out the illegality in the detention of applicant beyond 24 hours which has emerged on account of the failure of prosecution to produce the applicant before remand Magistrate within 24 hours from the date and time of his arrest. On the above premise, the learned senior counsel for applicant submits that applicant is thus clearly entitled to default bail in terms of Section 167(2) Cr.P.C. To buttress his submission, he has relied upon the following judgements of Supreme Court Madhu Limaye and others Vs. State of Bihar AIR 1969 Supreme Court 1014 and Manoj Vs. State of Madhya Pradesh 1999 (3) SCC 715.
20. He also submits that the Apex Court in the case of Madhu Liimaye (Supra) examined the right of a detenue to be produced before remand Magistrate within 24 hours of his arrest, in the light of the constitutional provision and the provisions of the Code (Cr.P.C.) and on basis thereof came to the conclusion that in no circumstance the detenue can be deprived of his right to be produced before the remand Magistrate within 24 hours of his arrest. According to the learned senior counsel, paragraphs 11 and 12 of the report are relevant for the issue in hand. He has thus laid much emphasis upon same.
21. According to the learned senior counsel, the issue that has cropped up for consideration before this Court in present application was incidentally, directly considered by the Supreme Court in Manoj (supra). Paragraph 9 of the report re-capitulates the issue involved herein as well as the view delineated by the Court. Accordingly, the same has been relied upon by the learned senior counsel.
22. Ratio laid down in both the judgments is to the effect that in case an accused, who has been taken into custody but has not been produced before remand Magistrate within 24 hours of his arrest as required under the constitutional mandate i.e. Article 22(1) of the Constitution of India, then the detention of such an accused beyond the period of 24 hours from the time of his arrest shall be rendered illegal and the same cannot get cured as legal with the passing of an order of remand by the remand Magistrate in exercise of power under Section 167(2) Cr.P.C.
23. On the above premise, it is thus vehemently urged by the learned senior counsel for applicant that the impugned order denying default bail to the applicant cannot be sustained. The same is, therefore, liable to be quashed by this Court and applicant is entitled to be enlarged on bail.
24. Per contra, the learned A.G.A. for State has opposed the present application. He submits that it is an undisputed fact that applicant is involved in a heinous offence which is punishable under Section 302 I.P.C. Applicant is involved in a crime which is not private in nature but a crime against society. Applicant has been avoiding the judicial process. He was arrested by U.P. Police and thereafter produced before the remand Magistrate on 03.07.2022. Once the order of remand has been passed by concerned Magistrate, the irregularity, if any, in the detention of applicant beyond 24 hours from the time of his arrest stands cured. As such, the claim of applicant for default bail on the ground as noted herein above is wholly misconceived. No illegality has been committed by court below in passing the impugned order. It is thus strenuously urged by the learned counsel for first informant that no indulgence be granted by this Court in favour of applicant.
25. Mr. Rakesh Dubey, the learned counsel representing first informant/opposite party-2 has adopted the arguments raised by learned A.G.A.
26. In addition to above, the learned counsel representing first informant-opposite party 2 submits that once the order of remand has been passed by the remand Magistrate in exercise of jurisdiction under Section 167 (2) Cr.P.C., the right to claim default bail will be available only if the charge sheet has not been submitted within a period of 90 days from the date subsequent to the order of remand. In the present case, the police report under Section 173(2) Cr.P.C.(charge-sheet) has been submitted on 01.10.2020 which is within a period of 90 days from the date subsequent to the date of remand order itself. As such, the claim of applicant for grant of default bail is misconceived and therefore, present application is liable to be dismissed.
27. Having heard Mr. Anoop Trivedi, the learned Senior Counsel for applicant, Mr. Manuraj Singh and Mr. Prashant Kumar, the learned A.G.A. for State and Mr. Rakesh Dubey, the learned counsel representing first informant/opposite party-2, this Court finds that following issues need to be answered before considering the claim of applicant for grant of default bail.
I. What is the actual date and place of arrest of the applicant.
II. On what date the applicant was produced before remand Magistrate after his arrest. In case, the applicant was produced before remand Magistrate after expiry of a period of 24 hours from the date and time of his arrest then the detention of applicant subsequent to the order of remand passed by concerned Magistrate shall be rendered legal or irrespective of above shall continue to be illegal.
III. If the detention of applicant beyond 24 hours is proved to be illegal then whether applicant is entitled to claim default bail or the remand order passed by the remand Magistrate even after expiry of a period of 24 hours from the date and time of arrest of applicant will wipe out the irregularity, if any, in the detention of the applicant beyond 24 hours of his arrest Or the remand order passed by the remand Magistrate after expiry of a period of 24 hours from the date and time of arrest of applicant will not wipe out the right of the applicant as guaranteed by Article 22(1) of the Constitution and the applicant, is entitled to default bail.
28. All the issues are interlinked and intertwined and therefore incapable of being dealt with, in isolation of each other. Accordingly, they are taken up together.
29. The Court takes notice of the fact that upon the rival submissions being urged before this Court regarding the actual date, time and place of arrest of applicant, this Court in order to ascertain the factual position regarding the day, date, time and place of arrest of applicant, passed the order dated 17.01.2023 which has already been quoted herein above. Pursuant to above order dated 17.01.2023, the Commissioner of Police, Police Commissionerate, Kanpur Nagar constituted a three member team i.e. SIT. The said SIT team has examined the documents and also verified the documents relied upon by the learned senior counsel for applicant in support of his contention that applicant was arrested on 01.07.2020 at Chindwara, Madhya Pradesh by conducting a fact finding enquiry. Thereafter, the SIT submitted its report dated 03.02.2023. Aforesaid report has been brought on record as Annexure-1 to the affidavit of compliance filed by the Commissioner of Police, Police Commissionerate, Kanpur before this Court through the learned A.G.A. The said report clearly goes to show that the accused-applicant was arrested at Chhindwara, Madhya Pradesh on 01.07.2020 and was thereafter produced by the UP police before the remand Magistrate, at Kanpur Nagar on 03.07.2020. Accused-applicant was handed in the Supurdagi of U.P. Police also. Thus the stand of the State before this Court is that the applicant was arrested on 01.07.2020 at Chindwara, Madhya Pradesh but was produced before the remand Magistrate at Kanpur Nagar on 03.07.2020 i.e. after expiry of a period of 24 hours from the date and time of his arrest.
30. The right of an accused to be produced before the remand Magistrate within 24 hours of his arrest is a fundamental right of the accused by virtue of Article 22 (1) of the Constitution of India. The said Article has been enshrined for protecting the life and liberty of citizens. It is like a safeguard against the might of the State. It manifests the principle of Rule of law. For ready reference, Article 22 (1) of the Constitution of India is reproduced herein-under:
" Article 22(1) (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
31. The scope of Article 22(1) of the Constitution of India and the nature and scope of the right which flows in favour of a detenue by reason of the said Article came to be examined by the Supreme Court in the case of Madhu Limaye (Supra). The Apex Court examined the said question in the light of the provisions of the Constitution the Code i.e. (Cr.P.C.) and the submissions urged before it. The Court ultimately delineated its views in paragraphs 11 and 14 of the report, which read as under:
"11 Article 22(1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the rule of law prevails. For example, the 6th amendment to the Constitution of the United States of America contains similar provisions and so does Article XXXIV of the Japanese Constitution of 1946. In England whenever an arrest is made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also of the reasons or grounds for the arrest. The House of Lords in Christie & Another v. Leachinsky ((1947) 1 All EER 567) went into the origin and development of this rule. In the words of Viscount Simon if a policeman who entertained a reasonable suspicion that X had committed a felony were at liberty to arrest him and march him off to a police station without giving any explanation of why he was doing this, the prima facie right of personal liberty would be gravely infringed. Viscount Simon laid down several propositions which were not meant to be exhaustive. For our purposes we may refer to the first and the third :
"1. If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.
2. X X X X
3. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained."
Lord Simonds gave an illustration of the circumstances where the accused must know why he is being arrested.
"There is no need to explain the reasons of arrest if the arrested man is caught red-handed and the crime is patent to high Heaven."
The two requirements of clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also, to know exactly what the accusation against him is so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the next and most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may without delay apply is mind to his case. The Criminal Procedure Code contains analogous provisions in Section 60 and 340 but out Constitution-makers were anxious to make these safeguards an integral part of fundamental rights. This is what Dr. B. R. Ambedkar said while moving for insertion of Article 15-A (as numbered in the Draft Bill of the Constitution) which corresponded to present Article 22 :
"Article 15-A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilised country follows as principles of international justice. It is quite true that these two provisions contained in clause (1) and clause (2) are already to be found in the Criminal Procedure Code and thereby probably it might be said that we are really not making any very fundamental change. But we are, as I contend, making a fundamental change because what we are doing by the introduction of Article 15-A is to put a limitation upon the authority both of Parliament as well as of the Provincial Legislature not to abrogate the two provisions, because they are now introduced in our Constitution itself."
"14.Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. This the State has failed to do. The remand orders are patently routine and appear to have been made mechanically. All that Mr. Chagla has said is that if the arrested persons wanted to challenge their legality the High Court should have been moved under appropriate provisions of the Criminal Procedure Code. But it must be remembered that Madhu Limaye and others have, by moving this court under Art. 32 of the Constitution, complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If their detention in custody could not continue after their arrest because of the violation of Art. 22(1) of the Constitution they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities. This disposes of the third contention of Madhu Limaye."
32. The same issue came up for consideration again before the Supreme Court in Manoj (supra), weherein Court concluded in paragraph 9 of the report, as follows:-
"Here the prayer for bail is opposed on the ground that detention is without such authorisation. Can the benefit of bail be denied on such a ground? Section 167(1) of the Code is relevant in this context as it enjoins on the police officer concerned a legal obligation to forward the arrested accused to the nearest magistrate. That sub-section reads thus.
"Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of subb-inspector, shall forthwith transmit to the nearest judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate." .
33. On the above premise, Mr. Anoop Trivedi, the learned Senior counsel submits that it is now a proved fact that the applicant was arrested on 01.07.2020 at Chindwara, Madhya Pradesh but was produced before the remand Magistrate at Kanpur Nagar on 03.07.2020 i.e. after expiry of a period of 24 hours which is in clear derogation of Section 57 Cr.P.C. As a result, the right of the applicant as guaranteed under Article 22(1) of the Constitution of India stood clearly infringed. The detention of the applicant after expiry of a period of 24 hours from the date and time of his arrest is, therefore, clearly illegal The order of remand dated 03.07.2020 passed by the remand Magistrate at Kanpur Nagar, whereby applicant was sent to judicial remand will not wipe out the illegality in the detention of the applicant beyond 24 hours from the time of his arrest and therefore, applicant is clearly entitled to default bail.
34. Learned A.G.A for State and Mr. Rakesh Dubey, the learned counsel for first informant have opposed this application. They have reiterated their submissions as already noted above. It is again urged that applicant is a named accused and involved in a heinous offence punishable under Section 302 I.P.C. Criminality committed by applicant is a crime against society. Applicant has been avoiding the process of the Court. Applicant could be arrested only on 01.07.2020 i.e. after 11 days from the date of the FIR and was produced before the remand Magistrate on 03.07.2020. However with the passing of the order of remand by the remand Magistrate on 03.07.2020, whereby applicant was sent to judicial remand the irregularity, if any, in the detention of applicant beyond 24 hours from the time of his arrest gets wiped out and the procedural defect shall stand cured. In view of above and coupled with the fact that the charge sheet was submitted against applicant before expiry of 90 days from the date subsequent to the date on which applicant was remanded to judicial custody, no ground exists to enlarge the applicant on bail by default. As such, no interference is warranted by this Court in present applications
35. Having heard, the learned Senior counsel for applicant, the learned A.G.A. for State, Mr. Rakesh Dubey, the learned counsel for first informant-opposite party 2 and upon perusal of record, the position that has emerged is that applicant is a named accused in Case Crime No. 425 of 2020 (State Vs. Mohd. Asim @ Pappu Smart) under Sections 147, 148, 149, 302, 34, 307, 120-B I.P.C. and Section 7 Criminal Law (Amendment) Act, Police Station Chakeri, District-Kanpur Nagar. The FIR regarding same was lodged on 23.08.2018. Applicant has been avoiding the process of Court. He did not surrender before the Court, but was arrested by the U.P. Police at Chindwara, Madhya Pradesh on 01.07.2020. The police report dated 30.09.2020 under Section 173(2) Cr.P.C. (charge-sheet) has been submitted against applicant on 01.10.2020 As such, on date, the applicant is a named/charge sheeted accused.
36. However, as noted above, the applicant was arrested on 01.07.2020 at Chindwara, Madhya Pradesh by U.P. Police. No transit remand was obtained by the U.P. Police from the concerned Magistrate at Chindwara. Applicant was handed in the Supurdagi of U.P. Police. He was produced before the remand Magistrate at Kanpur Nagar on 03.07.2020 i.e. much after the expiry of 24 hours from the date and time of his arrest. As such, the detention of applicant by police after expiry of a period of 24 hours from the time of his arrest is manifestly illegal. The order of remand dated 03.07.2020 passed by the remand Magistrate will not wipe out the aforesaid illegality. Therefore, the fact which has been strenuously urged before this Court on behalf of first informant that the charge sheet dated 30.09.2020 has been submitted against applicant within 90 days from the date subsequent to the order of remand i.e. 03.07.2020 is wholly misconceived and is of no help to the state or the opposite party 2. In the aforesaid circumstance, the law laid down by Supreme Court in Madhu Limaye and others Vs. State of Bihar AIR 1969 Supreme Court 1014 and Manoj Vs. State of Madhya Pradesh 1999 (3) SCC 715. is clearly applicable to the present case.
37. In view of the discussion made above, the present application succeeds and is liable to be allowed.
38. It is accordingly allowed.
39. The impugned order dated 01.10.2020 passed by Chief Metropolitan Magistrate, Kanpur Nagar in Criminal Case No. 15681 of 2020 (State Vs. Mohd. Asif @ Pappu Smart and Others) under Sections 147, 148, 149, 307, 302, 34, 120B IPC and Section 7 Criminal Law Amendment Act, Police Station-Chakeri, District-Kanpur Nagar, arising out of Case Crime No. 425 of 2020 (State Vs. Mohd. Asim @ Pappu Smart) under Sections 147, 148, 149, 302, 34, 307, 120-B I.P.C. and Section 7 Criminal Law (Amendment) Act, Police Station Chakeri, District-Kanpur Nagar is hereby quashed.
40. The applicant shall be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
Order Date :- 28.3.2023 YK