Allahabad High Court
Smt Bhuri vs State Of U.P. And Another on 20 December, 2022
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 72 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13030 of 2022 Applicant :- Smt Bhuri Opposite Party :- State of U.P. and Another Counsel for Applicant :- S.M. Iqbal Hasan Counsel for Opposite Party :- G.A. Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicant, learned A.G.A. appearing for the State and perused the record.
The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending her arrest in connection with Case Crime No. 448 of 2017, under Section 3/7 of the Essential Commodities Act, Police Station- Bilari, District- Moradabad.
It is contended on behalf of the applicant that she is innocent and has been falsely implicated in the present case. Further submission is that the applicant is the fair price shop dealer. An inspection was made by the Supply Inspector concerned in the fair price shop of the applicant. In the said fair price shop as per stock register 53 bags of wheat and 32 bags of rice were found. The allegation against the applicant is that nine bags of what and eleven bags of rice were found less in the fair price shop of the applicant. On the basis of the aforesaid allegation FIR of this case was lodged against the applicant. During course of investigation the applicant approached this Court by means of Criminal Misc. Writ Petition No. 25650 of 2017 in which the applicant was granted protection till filing of the charge-sheet. Further submission is that the time of inspection, the infant baby of applicant was admitted in the hospital in a serious condition, the applicant was not present in the fair price shop. The shop was inspected by the concerned Supply Inspector in the presence of brother of the husband of the applicant, who could not demonstrate the deficiency. On the basis of deficiency found in the fair price shop, the false and frivolous FIR of this case was lodged against the applicant. Thereafter fair price shop of the applicant was suspended.
After filing of the charge-sheet, the applicant again approached this Court by means of the Application Under Section 482 Cr.P.C. No. 7581 of 2019 in which the applicant was granted interim protection but in view of the judgment of Hon'ble Supreme Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. And others Vs. Central Bureau of Investigation, reported in AIR 2018, SC 2039, wherein it was observed that it is made clear that in event if the pleadings are not exchanged because of any non-cooperation of any of the contesting parties in not filing their counter version, the court would be free to pass a suitable order at the end of above mentioned upper limit of six months. Therefore, the interim protection granted to the applicant was vacated. Now the applicant approached this Court by means of instant anticipatory bail application.
Learned counsel for applicant has further submitted that the applicant fully cooperated during course of investigation. The Investigating Officer without collecting cogent and credible evidence filing charge sheet against the applicant in a routine manner. After vacating the stay order passed by this Court in application under Section 482 Cr.P.C., there is apprehension of arrest against the applicant, hence, the applicant seek anticipatory bail and she is ready to cooperate with the trial. If the applicant is granted anticipatory bail, she will never misuse the same. Learned counsel for the applicant has placed reliance on a judgement of the Supreme Court in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1.
The implication of the applicant is under Section 3/7 of Essential Commodities Act and other sections of I.P.C. regarding anomaly in stock distribution. The offence under Section 7 is cognizable but not non-bailable. In Section 10A of the Essential Commodities Act, 1955, after the word "cognizable" the words "and non-bailable" were inserted for a period of 15 years by Act 18 of 1981 as amended by Act 34 of 1993 now they have ceased to have any effect. Now the offences under Section 3/7 are cognizable and bailable therefore the anticipatory bail under Section 438 Cr.P.C is not maintainable since as per the U.P. Amendment Act, it is available only where a person has apprehension of being arrested on accusation of committing a non-bailable offence.
The above legal position is not clear to most of the Investigating Officers and the courts below and therefore, the bail application of the accused persons in such cases are rejected by the Magistrate and the special courts treating the offences to be non-bailable. Hence, it would be appropriate to protect the applicant's interest for limited period.
Learned A.G.A. vehemently opposed the prayer for bail.
It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration.
In the instant case, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicants and all attending facts and circumstances of the case, without expressing any opinion on merit of the case, a case for anticipatory bail is made out.
In the event of arrest the applicant (Smt. Bhuri) shall be released on anticipatory bail till conclusion of the trial in the aforesaid case crime for the aforesaid offences 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 India during the currency of trial without prior permission from the concerned trial Court.
2. The applicant shall surrender their passports, if any, to the concerned trial Court forthwith. Her passport will remain in custody of the concerned trial 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 them from disclosing such facts to the Court or to any police officer;
4. The applicant shall file an undertaking to the effect that she 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 applicants.
5. In case, the applicant misuse the liberty of bail, the Trial Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal and others v. State (NCT of Delhi) and another, (2020) 5 SCC 1.
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 their bail and proceed against them in accordance with law.
(vii) The applicant is directed to immediately participate in the trial otherwise, benefit of this order shall not be made available to him.
The anticipatory bail application is allowed.
Order Date :- 20.12.2022 Virendra