Allahabad High Court
Nitesh @ Nitin Singh And 9 Others vs State Of U.P. And Another on 15 July, 2021
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9684 of 2021 Applicant :- Nitesh @ Nitin Singh And 9 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Ashrey Kashyap Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
(1) Heard learned counsel for the applicants and learned A.G.A. Perused the record.
(2)The instant application invoking the powers of Section 438 Cr.P.C., is being filed by the applicants seeking anticipatory bail in Case Crime No.022 of 2021 under sections 498A, 323, 504, 377 and 354(Kha) IPC and Section 3/4 of D.P. Act, Police Station-Mahila Thana, District-Prayagraj.
(3) From the record it is evident that the applicants have approached this Court straightaway without getting their anticipatory bail rejected from the Court of Session.
(4) Learned counsel for the applicants has drawn attention of the Court to Clause-7 of Section 438 Cr.P.C. (U.P. Act No.4 of 2021), which read thus :
"(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."
After interpreting the aforesaid clause it is clear that the Legislature in its wisdom bestowed two avenues open for the accused. If the accused has chosen to come to the High Court straightaway, then he would not be relegated back to exhaust his remedy before the Court of Session first.
(5) 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.
(6) It has been contended by the learned counsel for the applicants that the applicants have got no criminal antecedents and they have not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced by learned counsel for the applicants on behalf of the applicants that they would render all requisite co-operation and assistance in the process of law and with the investigating agency and shall not create any hindrance to reach to its logical conclusion and shall not flee away from the course of justice.
(7) Learned counsel for the applicants has strenuously argued that the applicants have been made target just to besmirch their reputation and belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicants to demonstrate the falsity of the accusation made in the FIR against the applicants by the informant. Learned counsel for the applicants has also relied upon the judgements in the cases of Arnesh Kumar vs State of Bihar and another, (2014) 8 SCC 273; Joginder Kumar vs State of U.P. and others (1994) 4 SCC 260 and Sanaul Haque vs State of U.P. and another, 2008 Cri. LJ 1998, to buttress his contentions.
(8) In the case of Arnesh Kumar (supra), Hon'ble Apex Court has opined that the pith and core is that the police officer before arrest must put questions to himself, Why arrest?, Is it really required?, What purpose it will serve? What object it will achieve? If it is only after these questions are addressed and one or other conditions, as enumerated above, are satisfied, the power of arrest needs to be exercised. Before the arrest the police office should have a reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to satisfy further that the arrest is necessary for one or more purposes envisaged in sub-clauses (a) to (e) to Clause-1 of Section 438 Cr.P.C.
(9) In this backdrop of legal proposition, submission advanced by learned counsel for the applicants is that the FIR was got registered by one Smt. Nishtha Singh against ten named accused persons. General and omnibus role has been attributed to all the accused persons coupled with the fact that allegation of sodomy and misbehaviour was also levelled. It is further submitted that the present FIR has been lodged only after the husband has filed suit for conjugal right (annexure-1) dated 30.01.2021 and as soon as notices were served upon opposite party no.2, as a counter-blast, present FIR has been lodged against all the family members including the husband levelling general and omnibus role to all of them.
(10) Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application by mentioning that though the applicants have got no criminal antecedents but there is nothing on record to satisfy that the police personnel are after the applicants to arrest them. The alleged apprehension on behalf of applicants is imaginary and unfounded one. Learned A.G.A. has also submitted that in view of the seriousness of the allegations made in the F.I.R., the applicants are not entitled for any relaxation from this Court.
(11) After considering the record of the case as available before the Court, in the light of rival submissions made at the Bar and keeping in view the nature and gravity of the accusation, antecedents of the applicants, their undertaking to make themselves available to the authorities whenever required, the Court feels satisfied that it would be expedient to grant an order of anticipatory bail in favour of the applicant nos.1 and 2. Thus instant Anticipatory Bail stands ALLOWED with regard to applicant nos.2 to 10.
(12) Without expressing any opinion upon ultimate merits of the case either ways which may be adversely affect the investigation and subsequent stage of the case, the Court directs that in the event of arrest of the applicant nos.2 to 10 in aforesaid case crime, they shall be released on bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Arresting Officer with the conditions that :
(i) The applicant nos.2 to 10 shall make themselves available for the interrogation by the police as and when required. The Investigating Officer of the case would give 48 hours prior notice or telephonically inform the concerned accused-applicant to remain available to him for the purposes of interrogation and the accused-applicants are obliged to abide by such directions.
(ii) The applicant nos.2 to 10 shall not directly or indirectly make any inducement, threats or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.
(iii) The Investigating Officer of the case would make all necessary endeavour to gear up the investigation in utmost transparent and professional way and would try to conclude the same within a maximum period of 90 days. During this period the accused-applicants would not leave the State of Uttar Pradesh without informing the Investigating Officer of the case and sharing his contact number.
(iv) In the event the applicant nos.2 to 10 are having their passports, they will have to surrender the same before the concerned SP/SSP of the District till the submission of report u/s 173(2) Cr.P.C.
(13) In the event, the applicants breach or attempt to breach any of the aforesaid conditions or wilfully violate above conditions or abstains themselves from the investigation, it would be open for the Investigating Officer or the concerned authority to apply before the court of Session for cancellation of bail and the Court of Session has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.
(14) After assessing the rival submissions and taking into account the gravity and nature of the offence, the Court feels that the husband is solely responsible for this unfortunate incident and therefore, anticipatory bail application is hereby rejected with regard to applicant no.1-Nitesh@Nitin Singh(husband).
Order Date :- 15.7.2021 Sumit S