Allahabad High Court
Aashish Kumar Pal And 2 Others vs State Of U.P. Thru Prin Secy Home Deptt ... on 26 September, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- APPLICATION U/S 482 No. - 6759 of 2022 Applicant :- Aashish Kumar Pal And 2 Others Opposite Party :- State Of U.P. Thru Prin Secy Home Deptt U.P. Lko And 4 Others Counsel for Applicant :- Manohar Lal Syal,Ram Naresh Singh Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard M. L. Syal, learned counsel for applicants as well as learned Additional Government Advocate for opposite parties no. 1 to 4 and perused the record.
The instant application under Section 482 Cr.P.C. has been filed by the applicants namely Aashish Kumar Pal, Ram Bux Pal and Smt. Ramawati @ Lali with the prayer to quash the summoning order dated 14.9.2020 and charge sheet in Case No. 38723 of 2020, arising out of Case Crime No. 247/2019, under Sections 498-A, 323, 504, 506 IPC and 3/4 D.P. Act, Police Station Banthara, District Lucknow.
Learned counsel for the applicants fairly submits that though in the prayer clause of the application the relief with regard to the quashing of the summoning order as well as charge sheet has been claimed but learned counsel for the applicants is confining his prayer for issuance of appropriate direction to the trial court for expeditious disposal of the bail application of the applicants.
Learned counsel for the applicants submits that the instant dispute between the parties is purely matrimonial in nature and FIR in this case has been lodged only on account of matrimonial discorded relations by adverting to false, concocted and improbable facts while no offence as claimed by the opposite party no.5 has been committed by the applicants.
It is further submitted that the applicants throughout the investigation had cooperated with the Investigating Officer and having regard to Section 41-A Cr.P.C. no occasion or opportunity had ever arisen to the Investigating Officer to arrest the applicants and after submitting of the charge sheet the trial court had issued process against the applicants.
It is also submitted that the applicants are law abiding citizen and they intended to participate in the proceedings but are having apprehension that when they will appear before the trial court and move for bail the disposal of their bail application may take some time and in the meantime they may be confined in jail, which will not only jeopardize their personal liberty but would also destruct so otherwise sound reputation. Thus appropriate directions be given to the trial court.
It is next submitted that all the offence, wherein the charge sheet has been filed, are punishable with upto 7 years of imprisonment and are covered by the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 and Aman Preet Singh Vs. C.B.I. through Director : 2021 SCC OnLine SC 941, thus appropriate direction be given to the trial court for the purpose of expeditious disposal of the bail application, which may be moved by the applicants.
Learned A.G.A. on the other hand submits that in the F.I.R. as well as in the material collected during the course of investigation prima facie commission of cognizable offence is emerging, therefore, the application is not having substance so far as the prayer of quashment of the proceedings before the court below is concerned.
The Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 had held as under:
"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under:
"Categories/Types of Offences A) Offences punishable with imprisonment of 7 years or less not falling in category B & D. B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc. D) Economic offences not covered by Special Acts.
Requisite Conditions
1) Not arrested during investigation.
2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.
(No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615) CATEGORY A After filing of chargesheet/complaint taking of cognizance
a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.
e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided. (emphasis mine) CATEGORY B/D On appearance of the accused in Court pursuant to process issued bail application to be decided on merits."
CATEGORY C Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.
4. Needless to say that the category A deals with both police cases and complaint cases.
5. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with.
6. We may also notice an aspect submitted by Mr. Luthra that while issuing notice to consider bail, the trial Court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest. On this aspect also we would give our imprimatur and naturally the bail application to be ultimately considered, would be guided by the statutory provisions."
The directions of Hon'ble Supreme Court in Satender Kumar Antil (supra) has been again reiterated in the recent judgement in Aman Preet Singh Vs. C.B.I. through Director : 2021 SCC OnLine SC 941 by the Hon'ble Supreme Court and it is held as under:
"9. In our view, the purport of Section 170, Cr.P.C. should no more be in doubt in view of the recent judgment passed by us in Siddharth v. State of Uttar Pradesh (Criminal Appeal No. 838/2021), 2021 SCC OnLine SC 615). In fact we put to learned senior counsel whether he has come across any view taken by this Court qua the said provision. Learned counsel also refers to judgments of the High Court which we have referred to in that judgment while referring to some judicial pronouncements of this Court on the general principles of bail. The only additional submission made by learned counsel is that while the relevant paragraphs of the judgment of the Delhi High Court in Court on its own Motion v. Central Bureau of Investigation (2004) 72 DRJ 629 have received the imprimatur of this Court, the extracted portions from the judgment of the Delhi High Court did not include para 26. The said paragraph deals with directions issued to the criminal Courts and we would like to extract the portion of the same as under:
"26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society.
Directions for Criminal Courts:
(i) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest.
(ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the chargesheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.
(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.
(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C.
(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.
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10. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170, Cr.P.C. which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in Sub-para (iii) above by the High Court are in the nature of caution.
11. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."
The above mentioned law reports would reveal that the Hon'ble Supreme Court has chalked out a complete mechanism for the offences punishable with upto 7 years of imprisonment in the above Satender Kumar Antil (supra) and Aman Preet Singh (supra), thus, without going into merits and demerits of the allegations and counter allegations of the parties, the instant application moved by the applicants is finally disposed of in terms that the applicants may move appropriate regular bail application before the trial court within 30 days from today and if such an application is moved within the period stipulated herein-before, the trial court shall be under an obligation to dispose of the same in accordance with the law mentioned herein-above.
Order Date :- 26.9.2022 Muk