Allahabad High Court
Sundeep Agarwal vs State Of U.P. on 3 February, 2021
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1104 of 2021 Applicant :- Sundeep Agarwal Opposite Party :- State of U.P. Counsel for Applicant :- Sundeep Agarwal Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.
Heard Sri Alok Kumar Sharma, learned counsel for the applicant and learned A.G.A. for the State.
Order on Criminal Misc. Exemption Application This exemption application is allowed.
Order on Criminal Misc. Anticipatory Bail Application The instant anticipatory bail application has been filed on behalf of the applicant, Sundeep Agarwal, with a prayer to release him on bail in Case Crime No. 667 of 2020, under Section- 384, 420, 467, 468, 471, 504, 506 I.P.C., Police Station- Kotwali, District- Etawah, during pendency of trial.
Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
The allegation in the F.I.R is that the applicant along with other co-accused persons have formed a gang and by fabricating documents, they have executed fraudulent sale deeds regarding the land of the informant being plot nos. 1466, 1470 and 1471. The informant has claimed that she is in possession over the land in dispute since the time of her ancestors and it is being used as a graveyard by the family. It is their private graveyard. The applicant has executed an agreement dated 25.09.2020 and has entered into contract of sale of the aforesaid property in favour of other accused persons named in the F.I.R. The agreement has been concocted by the applicant when he is not recorded as owner of the property in the revenue record. When the informant protested, the accused persons demanded Rs. 50,00,000/- from her and are threatening her of taking forcible possession of her land and abduction of her daughter. There is no male member in the family of the informant.
Learned counsel for the applicant has submitted that the F.I.R has been lodged on absolutely false allegations made against the applicant and other accused persons. The applicant is the President of the trust registered in the name of Sheetal Prasad in city Etawah. By the resolution dated 20.03.2020, the applicant has been elected as the President of the trust. The family members of the applicant have also been elected as the office bearers of the trust. Earlier, Late Hari Krishna, grandfather of the applicant, Late Vijay Kumar Agarwal, father of the applicant were elected as President and now the applicant has been elected as President of the trust.
Learned counsel for the applicant has referred to the Khewat No. 1 wherein the property in dispute has been recorded as Hari Krishna, President of Waqf Committee Sheetal Prasad.
Learned counsel for the applicant has further relied upon the khatauni of Khewat No. 1 wherein plot nos. 1466, 1470 and 1471 are recorded in the name of trust but the informant along with other persons are recorded as persons in actual possession of the property.
Learned counsel for the applicant submits that the land of the trust was given to the informant and other persons for the purpose of living but the title of the land still vests in the trust and the applicant, being President of the trust, has every right to execute an agreement to sell of the aforesaid property. He has next submitted that the informant has lodged the F.I.R only to prevent the trust from reclaiming its land from the informant and other persons who are occupying the same. Even otherwise, only agreement to sell has been executed and no right title and interest in the property has been transferred. The applicant has been falsely implicated in this case. He has no criminal history to his credit. The applicant has definite apprehension that he may be arrested by the police any time.
Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
After considering the rival submissions, this Court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of F.I.R, the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an F.I.R has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant involved in the aforesaid crime be released on anticipatory bail 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 the country during the currency of trial without prior permission from the concerned trial Court.
2. The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned 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 her from disclosing such facts to the Court or to any police officer;
4. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
5. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.
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 his bail and proceed against him in accordance with law.
7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
8. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 3.2.2021 KS