Allahabad High Court
Ashutosh Tripathi @ Ashutosh Tiwari And ... vs State Of U.P. on 29 January, 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. - 1119 of 2021 Applicant :- Ashutosh Tripathi @ Ashutosh Tiwari And 3 Others Opposite Party :- State of U.P. Counsel for Applicant :- Shalendra Kumar,Amit Kumar Rai Counsel for Opposite Party :- G.A. Hon'ble Siddharth,J.
Order on Criminal Misc. (Amendment) Application No.01 of 2021 Learned counsel for the applicant has filed an amendment application praying that signature of the applicant No.4 was deleted from the Vakalatnama and he may be permitted to represent through his natural guardian, father, Sri Dinesh Kumar Tiwari.
Learned counsel for the applicant has made other prayer that complainant may be permitted to add as opposite party No.2 in the array of the parties in this anticipatory bail application.
Amendment application is allowed.
This anticipatory bail application is deemed to be corrected to the extent stated above.
Order on Anticipatory Bail Application Heard learned counsel for the applicants and learned AGA for the State.
The instant Anticipatory Bail Application has been filed with a prayer to grant an anticipatory bail to the applicants, namely, Ashutosh Tripathi @ Ashutosh Tiwari, Dinesh Kumar Tiwari @ Dinesh Tiwari, Poonam Tiwari and Anubhav Tiwari @ Shiv Tiwari, in Case Crime No.- 0611 of 2020, under Sections- 376, 504, 506, 509 IPC and 3/4 D.P. Act, Police Station- Rura, District- Kanpur Dehat (Ramabai Nagar).
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.
There is allegation against the applicant No.1 in the FIR that since 2016, informant is having relationship with him and he promised to marry her, but he refused to marry. Regarding other applicants, there is allegation that when the informant went to get the date of her marriage fixed, they have misbehaved with the informant and threatened her of dire consequences. The applicants have been falsely implicated in this case. They have no criminal history to their credits. The applicants have definite apprehension that they may be arrested by the police any time.
Learned AGA has opposed the prayer for anticipatory bail of the applicants. He has pointed out that in the statement of the victim under Section 161 recorded by the Investigating Officer, she had made allegation against the applicant No.1.
After considering the rival submissions this court finds that there is a case registered/about to be registered against the applicants. It cannot be definitely said when the police may apprehend them. After the lodging of FIR 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 FIR 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 rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.
Regarding the applicant Nos. 2 and 3, Dinesh Kumar Tiwari @ Dinesh Tiwari, Poonam Tiwari:-
Without expressing any opinion on the merits of the case and considering the nature of accusation and their antecedents, the applicant Nos. 2 and 3 are entitled to be released on anticipatory bail for limited period in this case considering the exceptions considered by the Hon'ble Supreme Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.
In the event of arrest, the applicant Nos. 2 and 3, Dinesh Kumar Tiwari @ Dinesh Tiwari, Poonam Tiwari shall be released on anticipatory bail till cognizance is taken by the court on police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court with the following conditions:-
(i) The applicant Nos. 2 and 3 shall make themselves available for interrogation by the police officer as and when required;
(ii) The applicant Nos. 2 and 3 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 from disclosing such facts to the Court or to any police officer;
(iii) The applicant Nos. 2 and 3 shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. concerned.
(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(v) 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.
In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant Nos. 2 and 3.
The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicant Nos. 2 and 3.
The applicant Nos. 2 and 3 are directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress who shall ensure the compliance of present order.
Regarding Applicant No.1, Ashutosh Tripathi @ Ashutosh Tiwari:-
Having heard learned counsel for the parties and upon perusal of material brought on record as well as complicity of accused and also judgement of the Apex Court in the case of P. Chidambaram Vs. Directorate of Enforcement, AIR 2019 SC 4198, this Court does not finds any exceptional ground to exercise its discretionary jurisdiction under Section 438 Cr.P.C.
However, in view of the entirety of facts and circumstances of the case, it is directed, on the request of counsel for the applicant No.1, that in case the applicant appears and surrenders before the court below within 90 days from today and applies for bail, his prayer for bail shall be considered and decided as per the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. Till then no coercive action shall be taken against the applicant No.1.
However, in case, the applicant does not appears before the court below within the aforesaid period, coercive action shall be taken against him.
It is made clear that the applicant will not be granted any further time by this court for surrendering before the court below as directed above.
With the aforesaid directions, this application is finally disposed of on behalf of applicant No.1.
Regarding Applicant No.4, Anubhav Tiwari @ Shiv Tiwari (minor):-
Connect and list along with Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8361 of 2020, Mohammad Zaid (Minor) Versus State of U.P. and Another.
Till the reference made in the above noted case is decided by the larger Bench, the applicant No.4, Anubhav Tiwari @ Shiv Tiwari, in the event of his apprehension/arrest by the police, in Case Crime No.- 0611 of 2020, under Sections- 376, 504, 506, 509 IPC and 3/4 D.P. Act, Police Station- Rura, District- Kanpur Dehat (Ramabai Nagar), shall be enlarged on interim anticipatory bail on the following conditions:-
(i) the applicant No.4 shall be released on interim anticipatory bail on execution of personal bond of Rs. 25,000/- by his parent/guardian and two sureties of like amount, one of whom shall be his parent or other close relative, till the inquiry is conducted and concluded against him u/s 14 of the J. J. Act, 2015, preliminary assessment into heinous offence u/s 15 of the J. J. Act, 2015 and order u/s 17/18 of the aforesaid Act is passed.
(ii) the parent/guardian of the applicant shall file undertaking to produce the applicant No.4 before the Juvenile Justice Board concerned as and when called upon to do so and if he is found involved in a non-bailable offence, including heinous offence, he will be produced before the Board concerned by his parent/guardian within a period of two weeks of such order u/s 18 (3) of the J. J. Act, 2015 and he will apply for regular bail u/s 12 of the J. J. Act, 2015.
(iii) in case the parent/guardian of the applicant No.4 does not produces the applicant No.4 before Board concerned as per the condition no. (ii) aforesaid, the police would be at liberty to arrest the applicant No.4 forthwith and produce him before the Juvenile Justice Board concerned as per Section 10 of the J. J. Act, 2015.
Order Date :- 29.1.2021 Ruchi Agrahari