Krishna Shamsher Jb Rana vs State Of Uttarakhand And Others on 17 June, 2022

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Uttarakhand High Court

Krishna Shamsher Jb Rana vs State Of Uttarakhand And Others on 17 June, 2022

This Anticipatory Bail Application No.150 of 2021, as instituted by the applicant/Mr. Krishna Shamsher JB Rana, on 20th July, 2021, admittedly, as per the pleadings of the applicant itself, it has got a chequered history, but still, this Court is of the view, that for the purposes of consideration of an application under Section 438 Cr.P.C., for the grant of an anticipatory bail, it has had to be restricted to be considered within the ambit and limit of exercise of powers vested with the Courts under Section 438 of the Cr.P.C. itself.

2. The brief history of litigation, which the applicant has admitted, in his submissions made before this Court, and particularly, the facts, which had been brought on record, before this Court ventures into the Anticipatory Bail 2 Application, these glaring facts are required to be considered.

3. The complainant /respondent No. 3, happens to be the uterine brother of the present applicant, having been born from the same parentage of late Mr. Colonel Shashi Shamsher Jang Bahadur Rana. The controversy arose for consideration, as a consequence of the registration of an FIR by respondent No. 3, as against the present applicant on 4th September, 2018, which was registered as Case Crime No. 145 of 2018, at Police Station Raiwala, District Dehradun, for the alleged involvement of the present applicant in commission of the offences under Sections 419, 420, 467, 468 and 471 of the IPC.

4. The admitted fact, as pleaded and argued by the leaned counsel for the applicant is, that on 3rd September, 2018, the aforesaid FIR No. 145 of 2018, was got registered by respondent No. 3 against the present applicant. The applicant contends, that as a consequence of the registration of the FIR as back as on 3rd September, 2018, since he was apprehending his arrest, he had on 4th February, 2019, filed an application under Section 438 of the Cr.P.C., before the Sessions Court, Dehradun, praying for the grant of anticipatory bail, which was numbered as Anticipatory Bail Application No. 213 of 2018, but however, the said Anticipatory Bail Application didn't find favour and was rejected by the learned Sessions Court by an order dated 4th February, 2019.

5. After the registration of the FIR and during the intervening period, when the applicant was having his recourses to the judicial proceedings for seeking his anticipatory bail, ever since 2018, the investigation was completed and the Investigating Officer has submitted a chargesheet on 4th February, 2019, being Chargesheet No. 16 of 2019, after examining as many as 12 witnesses, during the course of carrying on the investigation and had also placed reliance on the SCRB; PHQ expert reports with regard to the establishment of allegation of fraudulently getting an attorney executed, i.e. of 12th July, 2018, by impersonating respondent No. 3, who then actually,was residing in Australia at the relevant point of time.

6. The applicant submitted, that in the chargesheet thus submitted by the Investigation Officer on 4th February, 2019, no reliance could have been placed on the same at the moment, for the reason, being that the Investigating Officer has placed reliance on the zerox copy of the document, which could not at all be considered and taken it as to be a foundation for establishment of the charges levelled against the applicant in FIR No. 145 of 2018, because in the judicial functions, the xerox copy of the documents cannot be taken into consideration for establishment of the case.

7. Secondly, the learned counsel for the applicant, had submitted that the expert report, which was the basis of the chargesheet, as submitted by the Police Authorities, i.e. SCRB; PHQ, much reliance on the same cannot be made for holding the sanctity of the set of allegations with regard to a 4 fraudulent execution of the power of attorney on 12th July, 2011, on behalf of respondent No.3, the complainant, as the Police Authorities were and are not the experts and they were not fit, for making a comparison of the thumb impression as appearing in the power of attorney, which was the basis of the FIR No. 145 of 2018, much credence cannot be placed on the same.

8. As against the rejection of the Anticipatory Bail Application No. 1213 of 2018, the applicant has submitted, that he has approached the High Court by filing an Anticipatory Bail Application, being Anticipatory Bail Application No. 3 of 2020. This Court, while considering the aforesaid Anticipatory Bail Application, which has been preferred by the applicant, by a detailed order passed on 15th June, 2020, had rejected the Anticipatory Bail Application on the ground, that in accordance with the decision of the Division Bench, rendered on 19th September, 2018, allowing the Special Appeal, and as a consequence thereto, holding thereof the provisions of the Anticipatory Bail Application would not be applicable in the State of Uttarakhand, as it was a ratio propounded by the Division Bench of this Court in the matter of Vishnu Sahai Vs. State of Uttarakhand, as decided in Special Appeal No. 739 of 2018.

9. The applicant submitted, that the aforesaid ratio laid down by the Division Bench of this Court, in its judgement affirming the non applicability of Section 438 of the Cr.P.C. in the State of Uttarakhand, ought not to have created any impediment in considering the Anticipatory Bail 5 Application, owing to the subsequent notification which was issued by the State, being Notification No. 205/XXXVI(3)/2020/82 /1/2019 dated 17th August, 2020, by virtue of which, it is contended by the applicant, that the provisions of the Anticipatory Bail Application, was made applicable in the State owing to the issuance of the Notification by the State, and hence, the judgement of 5th June, 2020, was attempted to be argued to be faulted by wrongly applying the principals of Vishnu Sahai (Supra) judgment, as decided by this Court in Special Appeal 739 of 2018.

10. At this juncture, it will be apt to observe, that after the decision taken in the Special Appeal No. 739 of 2018, in the matters of Vishnu Sahai (Supra), and before the applicant's Anticipatory Bail Application No. 3 of 2020, could be considered on 15th June, 2020, at that relevant point of time, the alleged plea raised by the applicant based on the notification which had been issued subsequently on 11th August, 2020, would be a fact, which was not available to the applicant at that time, in order to mitigate the effect of the order of 15th June, 2020, rejecting the Anticipatory Bail Application of the applicant.

11. The factual backdrop, as it has been pleaded by the applicant in the Anticipatory Bail Application, and which stands admitted too by him, it is submitted by the applicant that there happens to be a family trust, which is called as "Cambrian Hall Educational Trust", of which, the applicant claims himself to be the exclusive President, owing 6 to the fact that, earlier the principle creator of the trust, his mother, namely, Smt. Rani Chandraraj Laxmi, who was initially under the helm of the affairs of the alleged Trust, due to her age and ailment, had met with the sad demise, and consequently, it was contended by the applicant that he was and had been functioning as a President of the 'Cambrian Hall Educational Trust', of which the respondent No. 3, claimed to be having an equal right, since the rights having been divested upon him on the basis of the succession of the estates of late Smt. Rani Chandraja Laxmi.

12. The controversy arose when for a certain piece of a property, lying in Rishikesh, whereby a revocable power of attorney was said to have been allegedly executed by respondent No. 3, in favour of the present applicant, allegedly on 12th July, 2011, and it is contended by the applicant, that under the strength of the said attorney, which is the basic reason for the dispute arising out of registering the FIR on the ground, that it was a fraudulent attorney which was got executed by impersonating a person, due to which, the complainant respondent No. 3, was deprived of his rights in relation to the part of the property, which was sold by the present applicant on 29th May, 2015, on the basis of the attorney of 12th July, 2011, by selling the piece of property in exchange of sale consideration of Rs.30 lacs, though, it has been pleaded by the applicant, that he and respondent No.3 would be having an equal share over the sale consideration accruing from the sale deed of 29th May, 2015. But this issue may not be factually of much concern for the present Anticipatory Bail Application.

13. But the issue raised by the complainant respondent No. 3, in the FIR No. 145 of 2018, as registered on 4th September, 2018, was that since he had never executed the alleged attorney dated 12th July, 2011, since he has either too has not given any right to be exercised by the present applicant for dealing with the property, which constituted to be the part of the family trust called as Cambrian Hall Educational Trust, any conveyance, which was made by the present applicant under the strength of attorney of 12th July, 2011, would be bad in the eyes of law and with the clever malicious intention to derive a mandatory benefit and to deprive the complainant of his rights, which stood divested to heirs by succession, as a consequence of death of their mother late Smt. Rani Chandraja Laxmi, who died on 3rd September, 2018.

14. The complainant further submitted, that since he was also at the relevant time of execution of attorney was residing temporarily in Australia, and taking advantage of his absence, the applicant has impersonated his person, in getting the attorney executed on 12th July, 2011, the applicant would be liable to be prosecuted for the offences, complained of in the FIR under Sections 419, 420, 467, 468 and 471 of the IPC.

15. The applicant in order to denounce and refute the content of the FIR, as registered by his brother respondent No. 3, at the stage of raising a plea in the Anticipatory Bail Application No. 1213 of 2018, he admitted the factum of sale 8 of 29th May, 2015, of the Rishikesh property, but simultaneously, he denied the facts, that so far as respondent No. 3 is concerned, since ever since mid of 1980, the respondent No. 3, complainant was admittedly residing in Australia, he cannot at all be treated as to be a Trustees of the Cambrian Hall Educational Trust and no rights, whatsoever would flow to him from the estates of late Smt. Rani Chandraraja Laxmi. But, however, the Anticipatory Bail Application No. 3 of 2020, was dismissed by this Court on 15th June, 2020, obviously prior to the Notification of 11th April, 2020.

16. As referred to hereinabove, as the consequential effect of submission of the Chargesheet No. 16 of 2019, on 14th December, 2019, the cognizance on the same was taken by the Judicial Magistrate, Rishikesh, on 26th March, 2019, and the summoning Order was issued against the present applicant, calling upon him to put in appearance in the proceedings of Criminal Case No. 0406 of 2019, State Vs. Krishna Shamsher Jang Bahadur Rana, which was arising from the present Case Crime No. 145 of 2018.

17. It will be apt to point out at this stage itself, that because a very half-hearted pleading has been raised by the applicant in the present Anticipatory Bail Application, while referring to the proceedings of C482 Application No. 337 of 2020, which was admittedly preferred by the present applicant, in which, the applicant has put a challenge to the FIR of 3rd September, 2018, the Chargesheet of 4th February, 2019 and also the summoning order of 25th November. 2020.

18. In the pleading raised in the application filed in support of the Anticipatory Bail Application, the applicant though has articulatory made reference to the proceedings of C482 Application No. 337 of 2020, but while pleading as to what consequences did the proceedings of C-482 has reached, he has made a very vague observation, that the said application was disposed of. The articulated pleadings of disposal of C482 No. 337 of 2020, it cannot be ruled out, that it was deliberately done with a clever intent to mislead the Court by bringing the true and correct fact before this Court, while considering its implication on the Anticipatory Bail Application.

19. In fact, when the C482 Application No. 337 of 2020, was considered by the Coordinate Bench, and since the judgement of 25th February, 2020, rendered on it was not made part of the records of the present Anticipatory Bail Application, this Court had summoned the records of C482 Application No. 337 of 2020, from the Registry, and then only it could reveal to the Court, that C482 Application was dismissed and while dismissing the C482 Application, the Court has made necessary observations in para 14 to 17, which are extracted hereunder :-

"14. The investigating officer also obtained the expert opinion with regard to finger prints and thereafter collected the evidence of forgery. In the instant case, the FIR discloses commission of cognizable offence after investigation, the charge-sheet has been submitted against the petitioners.

15. Having considered the submissions in the facts and circumstances of the case, this Court is of the view that there are no reasons which may warrant interference by this Court. Accordingly, the petition deserves to be dismissed.

16. At this stage, learned counsel for the petitioners would submit that directions may be issued that the bail application of the petitioners be considered on the same day, when they surrender before the court concerned.

17. The petition is dismissed. However, if the petitioners surrender before the court concerned and apply for their bail, the same may be disposed of, as expeditiously as possible, in accordance with law."

20. What is important is, that the Court while declining to interfere in the C482 Application, and while giving challenge to the aforesaid order of the submission of the chargesheet, summoning order and the FIR itself, the Court has observed that, in case, the applicant submits the Bail Application, before the Trial Court after surrendering that would be considered on the same day, provided he surrenders before the Court. As a consequential effect of the judgement of 15th February, 2020, this Court is of the opinion that when the C-482 Application was dismissed and the applicant was relegated by a judicial unchallenged dictum, to file the regular bail application and was directed to surrender before the Court concerned, the issue would be, now at this stage, as to whether at all the Anticipatory Bail Application, which would be the second Anticipatory Bail Application; Whether at all, it could be considered by this Court at the stage, particularly when, there is nothing on record placed by the applicant to show, that as against the judgement of 25th 11 February, 2020, the applicant has resorted to any proceedings before any other superior Courts ?

21. In that eventuality, and the peculiar distinct circumstances, this Court is of the view, that the applicant would be bound by the liberty granted by the Court vide its judgement dated 25th February, 2020, for surrendering himself before the Court concerned and seeking a regular bail, which in the present peculiar circumstances of the case, cannot be permitted to be overridden by the applicant by filing the present Anticipatory Bail Application.

22. But, for the reason best known, the applicant had yet again filed an Anticipatory Bail Application before the learned Sessions Judge, though for the second time being Anticipatory Bail Application No. 277 of 2021, which has been rejected by the learned Sessions Court by the order dated 11th February, 2021.

23. Being aggrieved against the rejection of the Anticipatory Bail Application by the order dated 11th February, 2021, and despite of the subsistence of the judgement of 25th February, 2020, as it was rendered in C482 Application No. 337 of 2020, the applicant preferred a 2nd Anticipatory Bail Application before this Court, being Anticipatory Bail Application No. 23 of 2020, and this Court while considering the arguments, which were then raised, therein with regard to the effect of the Notification No. 205 dated 11th August, 2020, had allowed the Anticipatory Bail Application No. 23 of 2020, and while 12 allowing the same, the matter was relegated back to the learned Sessions Court to re-decide the Anticipatory Bail Application, preferred by the applicant in the light of the observations made in the order / judgement dated 29th January, 2021, the relevant directions issued, are as contained in para 8 and 9, are extracted hereunder:-

"8. The counsel for the applicant has expressed an apprehension that in all probabilities, the principal proceedings may be placed before the learned Trial Court by 2nd week of February, 2021. The applicant also apprehends that in an event, if this order is not placed before the learned Sessions Judge for consideration of his Anticipatory Bail Application, which has been revived to be considered on merits as a consequence of the aforesaid judgment, the applicant apprehends for the stay of arrest.

9. In that eventuality, it would be left open for the applicant to file an appropriate application supported by an affidavit before the Sessions Judge, intimating about today's order and direction given therein to decide the Anticipatory Bail Application on its own merits and the Sessions Judge is requested to decide the Anticipatory Bail Application on its own merits before the next date."

24. Consequently, the Anticipatory Bail Application was considered by the learned Sessions Court and the same was rejected on 11.02.2021, hence the present Anticipatory Bail Application, was filed before this Court on 23.07.2021.

25. There are various contentions, which had been raised by the learned counsel for the applicant before this Court.

26. The arguments of the learned counsel for the applicant could be summarised on these basic principles, which had been referred to by the applicant during the course of his argument, wherein, he has submitted, that the propriety of the chargesheet itself could be doubtful as submitted on 4th February, 2019, since it was based upon the considering of xerox copy of the documents, which had been placed before the Investigating Officer, and in relation thereto, to support his arguments, the counsel for the applicant had made reference to the judgement as reported in (2010) 8 SCC 423, Shalimar Chemical Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and others.

27. With all due reverence at my command and the tenacity of the argument of the learned counsel for the applicant, with regard to the admissibility of the zerox copy of the documents and the principals, which had been laid down therein in the matter of Shalimar Chemical (Supra), in fact, as per opinion of this Court, those principles will not apply at the stage when the Investigating Officer, was discharging his executive powers of carrying on investigation under the provisions of the Cr.P.C.. The procedure of Investigation in itself is neither a judicial or a quasi judicial proceedings and hence, relying on the xerox copy of the document during investigation, particularly, the power of attorney of 12th July, 2011, it cannot be said that the Investigating Officer cannot consider the propriety of the xerox copy of the document at the stage of investigation and it would not be admissible during the course of the 14 investigation being carried by the Investigation Officer since not being a judicial proceedings.

28. Apart from it, the reliance placed on the judgement of Shalimar Chemical (Supra), if that itself is taken into consideration, it was a case which was arising out of a civil proceedings, which was emanating from a Suit which was instituted for the grant of decree of permanent injunction based upon the set of allegations of infringement of the Registered Trade Mark in relation to a Company, which stood incorporated under the provisions of Company Act. The proceedings therein, which were under consideration, since were the proceedings, which were held before the competent Civil Court of Hyderabad, dealing with the issue of grant of decree of permanent injunction, it was exclusively governed by the settled principles of the Civil Laws and the parameters determined therein, as relied upon was in the context of para 15 to 18 of the said judgement, the reference of which, has been made by the learned counsel for the applicant will not apply, as it was in the context of civil proceedings and the same principles cannot be borrowed to be made applicable in a criminal proceeding, and that too, in a proceeding which are at the stage of investigation before the Investigating Officer.

29. Hence the principle of para 15 to 18, which is extracted hereunder would not be applicable in the facts of the instant case, in order to doubt the propriety of the chargesheet submitted by the Investigation Officer, and that too particularly, when the propriety of the chargesheet itself 15 has been put to challenge by the applicant and upon being challenged and affirmed with the dismissal of the C-482 Application by the Co-ordinate Bench of this Court vide its judgement of 25th February, 2020. Para 15 to 18 is extracted hereunder :-

"15. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded.

16. The learned Single Judge rightly allowed the appellant's plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.

17. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent-defendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single 16 Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so.

18. The judgment and order dated 25-4-2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the originals of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the respondent- defendants to lead any rebuttal evidence or make a limited remand as provided under Order 41 Rule 28."

30. Secondly, it was contended by the learned counsel for the applicant, that there was a procedural impropriety in the execution of the power of attorney and with regard to the set of allegation of the document, being a fabricated document, since having been executed by an imposter. The procedural impropriety of a document, which forms to be a set of allegation for the offence covered under the Indian Penal Code, cannot be subjected to a judicial scrutiny in the criminal proceedings, until and unless the document itself is put to test and has been upheld by the competent Civil Courts, as to its sustainability in the eyes of law.

31. Hence, in relation to substantiate his arguments in relation to the proceedings being procedurally irregular, the reference made by the learned counsel for the applicant is to the judgement as reported in 1996 (6) SCC 660, United Bank of India Vs. Shri Naresh Kumar and others, if the context, in which, the said judgement, was rendered by the Hon'ble Apex Court, if that is taken into consideration, in fact, the said principal will not be applicable, because if the 17 ratio laid down in the said judgement, is taken into consideration, it was yet again, a case which was emanating from a Suit for recovery of money by the appellant Bank, which yet again, happens to be a civil proceedings, exclusively falling within the domain of a civil procedural law, provided under the CPC and it was in the civil proceedings, where the procedural impropriety was a subject matter of consideration.

32. Hence the said judgement since being absolutely alien to the present proceedings, the same would not apply. The reference made by the learned counsel for the applicant, to the paragraph relied by him during the course of his arguments are extracted hereunder and the details, which has been provided therein in the aforesaid judgement would not be applicable. Para 9 of the aforesaid judgment is extracted hereunder:-

"9. In cases like the present where suits are instituted or defended on behalf of a public corporation, public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable."

33. The learned counsel for the applicant, in support of his contention, apart from the fact that he had submitted that the applicant is a senior citizen of 67 years of age and is 18 ailing and owing to the prevalent covid-19 pandemic situation, he ought not to be arrested, for the offences registered against him.

34. This Court is of the view, that all these augments are not open to be considered, at the hands of the applicant, particularly when, the cognizance have already been taken by the Criminal Courts in a Criminal Case No. 270 of 2019, by an order dated 26th March, 2019, hence, the appropriate recourse applicable for the applicant would have been after the cognizance order that he ought to have approached before the Trial Court itself in the light of the observations made in the judgement of C482 Application No. 337 of 2020, as decided by the Coordinate Bench on 25th February, 2020, particularly that, as contained in para 16 of the said judgment as extracted above, and once the applicant himself had submitted to the direction issued in C482 Application preferred by him, and had undertaken to surrender and to seek a regular bail, after the cognizance had been taken by the Trial Court, the same cannot be pressed into now at this stage by invoking the provisions contained under Section 438 of the Cr.P.C., which cleverly attempt to override the undertaking given by the application in C-482 Application, filed before High Court.

35. The learned counsel for the applicant had submitted, that in view of the ratio laid down by the Hon'ble Apex Court in the matter of Criminal Appeal No. 277 of 2018, Dataram Singh Vs. State of Uttar Pradesh and another, which postulated that there would be a presumption 19 of innocence, until and unless a person is believed to be not to be innocent, until and unless, he is held to be guilty, the judicial custody of a person concerned, is not to be resorted to in the light of the principles which had been laid down in para 4 and 6 of the judgement, which has been relied by the learned counsel for the applicant, which is extracted hereunder :-

"4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first- time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v.

Union of India 2 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab3 in which it is observed that it was held way back in Nagendra v. King- Emperor4 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson5 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days."

36. With all due reverence at my command, the argument which has been extended by the learned counsel for the applicant in the context of the judgement of Dataram Singh (Supra), pertaining to laying down the the wider principles of criminal jurisprudence of treating an accused person to be an innocent until and unless he is proved otherwise, this case in complete concurrence to the view expressed therein, but it was a case where, the accused was arrested during the investigation, because there was a possibility of tempering of evidence, and after submission of the chargesheet, he was taken in judicial custody and the proceedings of the criminal trial was being proceeded with. In that case, it was not a situation, where the Hon'ble Apex Court, had an occasion to consider the impact which was factually akin as it was involved in the present case, where cognizance has already been taken, and where as against the cognizance order, the C-482 Application has been dismissed by this Court and that too, on a undertaking given by the applicant to surrender before the Trial Court and to seek his bail from the regular Court.

37. This argument of the learned counsel, too as per the opinion of this Court would not be sustainable no any material benefit to the applicant for getting an anticipatory bail.

38. The learned counsel for the applicant had further made reference to yet another judgement as it was rendered by the Hon'ble Apex Court in Criminal Appeal No. 742 of 2020, Arnab Manoranjan Goswami Vs. The State of Maharashtra and others, and particularly, at an appellate stage, it was a case where the Hon'ble Apex Court was dealing with an issue of invocation of a jurisdiction of the High Court under Articles 226 or 227 of the Constitution of India, and Section 482 of the Cr.P.C.. The learned counsel for the applicant in the matters of Arnab Manoranjan Goswami (Supra) relied by him, and has referred to the judgement in the context of as to what would be the impact of sustainability of the Anticipatory Bail Application, under Section 438 of the Cr.P.C., after submission of the chargesheet, and particularly, in the context of, as to whether the appellant therein could be relegated to pursue the remedies under Section 439 of the Cr.P.C..

39. The reference made to the aforesaid judgement is in much factual contra distinction to the present case, almost based on the same logic as assigned earlier, that cognizance had already been taken and the C482 Application, which was an ambit under consideration before the Hon'ble Apex Court, as dealt with in para 53 of the judgement, has already been 22 exhausted by the applicant in the present case, and hence, the principal relied based upon the observations made in para 62, where the Hon'ble Apex Court has made reference to a judgment of Romila Thapar Vs. Union of India as reported in 2018 (10) SCC 753. Para 62 of the aforesaid judgment is extracted hereunder :-

"62. It would be apposite to extract the observations made, albeit in a dissenting opinion, by one of us (Dhananjaya Y Chandrachud, J.) in a decision of a three judge bench in Romila Thapar vs Union of India, (2018) 10 SCC 753.

[T]he basic entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative process should be fair. This is an integral component of the guarantee against arbitrariness under Article 14 and of the right to life and personal liberty under Article

21. If this Court were not to stand by the principles which we have formulated, we may witness a soulful requiem to liberty.

The decision was a dissent in the facts of the case. The view of the leading majority judgment is undoubtedly the view of the court, which binds us. However, the principle quoted above is in line with the precedents of this court."

40. It was a judgment which was in the context of envisaging a fair investigation. But, it was not a case, which had at all had an occasion to consider the effect of the cognizance and the commencement of trial, as a consequent of the effect of taking cognizance by the Court and that too, when the cognizance and summoning order has been affirmed by the High Court, in its exercise of inherent jurisdiction under C-482 Cr.P.C. and the principal 23 fundamental, which was considered is with regards to the freedom under law, the concept and philosophy of freedom under law, cannot be made unfettered, it has had to be restricted and circumscribed within an ambit of the procedural law, which governs the trial under the Cr.P.C., hence the said judgement, as per the opinion of this Court, will not be of any avail to the applicant, to be made applicable.

41. The learned counsel for the applicant, had made reference to yet an another judgment which was rendered by Hon'ble Apex Court in Criminal Appeal No. 1250 of 2003, Bharat Chaudhary and another Vs. State of Bihar and another, as decided by the Hon'ble Apex Court on 8th October, 2003, and particularly, he has made reference to the observations which had been made by the Hon'ble Apex Court with regard to the implications of exercise of powers under Section 482 Cr.P.C. after submission of the chargesheet and the cognizance having being taken on the chargesheet by the learned Trial Court. As to whether, still the anticipatory bail application could be considered under Section 438 Cr.P.C. for the grant of anticipatory bail. Relevant paragraph of the aforesaid judgment is extracted hereunder :-

".....From the perusal of this part of Section 438 of the Crl. P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the 24 complaint or the investigating agency has filed a chargesheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of the Crl. P.C. even when cognizance is taken or charge sheet is filed provided the facts of the case require the Court to do so."

42. The ratio propounded therein, and heavily relied by the learned counsel for the applicant with regard to the effect of taking of the cognizance by the Trial Court after submission of the chargesheet, at a risk of repetition, this Court is of the view, that the ratio as it has been laid down by the Hon'ble Apex Court in the said judgement of Bharat Chaudhary (Supra) relied by the applicant will not be available to be argued by him in the light of the fact, that it was rendered in a much factual distinction to the facts of the present case, it was not a case, where against the cognizance order has been confirmed, with the dismissal of C-482 Application.

43. Hence, the bearing of a cognizance order for the purposes of sustaining an Anticipatory Bail Application under Section 438 Cr.P.C., would still be infringed in the light of the concluded judgement of C-482 against the 25 applicant, where the chargesheet, cognizance order and summoning order were under challenge, which had been affirmed.

44. Hence, the observations made by the Hon'ble Apex Court with regard to creating of a restriction or an absolute bar on the concerned Court, for granting an anticipatory bail, even in the cases, where the cognizance has been taken and chargesheet has been filed, the wider guidelines, which has been laid down therein, could not be ventured into in the instant case because exercising the power under Section 438 Cr.P.C. at this stage would amount to override the effect of unchallenged judgement of C-482 Application, preferred by the applicant, which has affirmed the chargesheet and the cognizance order and a via-media of the observation made in the judgment to surrender before Trial Court and seek a regular bail, is being attempted to be overridden by filing the present Anticipatory Bail Application.

45. The learned counsel for the appellant, out of total 27 judgements, which he had relied in support of his contention to the Anticipatory Bail Application, has lastly made reference to the judgement of Hon'ble Apex Court rendered in Criminal Appeal No. 838 of 2021, Siddharth Vs. The State of Uttar Pradesh and another, wherein, he has relied upon the observations which had been made by the Hon'ble Apex Court with regard to the effect of arresting. In that case too, the Hon'ble Apex Court was dealing with the impact of Section 170 of the Cr.P.C., imposing an obligation 26 on the "Officer In-charge", this stage of Section 170 of the Cr.P.C. is not a subject, which would be still opened to be argued because the stage of investigation by the Officer In- charge, necessitating the arrest of a person during the course of the investigation till the submission of the chargesheet, is a stage, which is over now, and in that eventuality, the ratio relied by the learned counsel for the applicant is not tenable and is not accepted by this Court.

46. The learned counsel for the applicant has made reference to yet another judgement of Hon'ble Apex Court as reported in 1994 (4) SCC 260, Joginder Kumar Vs. State of U.P. and others, as decided on 25th April, 1994, and particularly, the reference made by the Counsel for the present applicant is to the observations, which had been made by Hon'ble Apex Court in para 20 of the said judgement, which is extracted hereunder:-

"20. In India, Third Report of the National Police Commission at page 32 also suggested:

"An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances:

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims.

(ii) The accused is likely to abscond and evade the processes of law.

(iii) The accused is given to violent behaviour and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines ...."

The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do."

47. As a consequence of considering the gravity of the offence and the peculiar circumstances, which was a subject matter of investigation and ultimate trial, as to 28 whether, there could be a victimization of an applicant by being arrested, the wider guidelines was laid down by the Hon'ble Apex Court in para 20 of the said judgement, that a personal liberty has been guaranteed to every citizen under the Constitution of India, and an arrest by the Police Official has not to be resorted to, even if it is lawful for the Officer to do, until and unless, the justification for the exercise of its power to arrest the person is necessitated because of the incalculable harms to the reputation or self esteemed of a person.

48. I am of the view that the analogy of a self-esteem is a self-imposed notion and perception, which ethically varies, which cannot be arithmetically determined by any wider laid down specified principles, and hence, a common pedestal of probability of causing harm to the reputation and self-esteem of a person, cannot be uniformly made applicable at the stage of considering the Bail Application or Anticipatory Bail Application, as it would be always depending upon the facts of the case, and particularly, in the instant case, where procedurally much water has flown after the cognizance order was passed by the learned Trial Court and ultimately, its affirmation by this Court in its exercise of its inherent power under Section 482 Cr.P.C., where applicant himself before this Court undertook to surrender and seek his bail.

49. In that view of the matter, and for the reasons aforesaid, this Court is not inclined to consider and grant anticipatory bail to the applicant. The applicant would be 29 bound by the judgements, which he had solicited by himself in C-482 Application No. 337 of 2020, as decided in the proceedings drawn by him by the judgement of the Coordinate Bench rendered on 25th February, 2020. The applicant is supposed to surrender before the learned Trial Court in accordance with his undertaking as given in C-482 Application No. 337 of 2020, and seek his regular bail.

50. Consequently, for the aforesaid reasons, the Anticipatory Bail Application is hereby rejected.

(Sharad Kumar Sharma, J.) 17.06.2022 Shiv

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