Allahabad High Court
Veer Singh Alias Veerendra Singh vs State Of U.P. on 10 July, 2019
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 44 Criminal Misc. Bail Application No. 27361 of 2019. Veer Singh Alias Veerendra Singh vs. State Of U.P. Hon'ble Ramesh Sinha,J.
1. Heard Sri Ram Surat Patel, learned counsel for the applicant, Sri G.P. Singh, learned A.G.A. for the State and perused the record.
2. The brief facts of the case are that on 20.1.2019 an information was received by Station House Officer of police station Dakor, District Jalaun while he along with other police personnel under the direction/order of Superintendent of Police, Jalaun, was in search of wanted criminals that some accused persons carrying illegal liquor in a Pick Up vehicle for being taken to another State. On receiving the said information, he along with other police personnel reached at the spot where he saw a pick-up vehicle bearing registration no. UP 78 DN 4986 was coming from Orai. When the police intercepted the said vehicle, two accused, who were sitting at the adjacent seat of the driver fled away from the place of occurrence. The police arrested the other three accused persons, who were also sitting in the said vehicle and on interrogation, they told their names as Devendra Singh Rajput, Vikram Rajput and Sunil Kumar Rajput and on query being made from them about the two accused, who fled away from the place of occurrence, they disclosed their identity as Veer Singh @ Virendra and Onkar. On search of the said vehicle in all they found 240 bottles, i.e., 11,520 quarter of country made liquor on which High Time Premium Whisky for Sale Arunachal Pradesh Only was written. Beside that in a white box 100 cap, 100 raper and a white jar filled with deep brown liquid were also found. Thereafter, the accused and the recovered articles were brought in the police station and recorded in the G.D. and the accused were taken into custody showing their arrest at 13:25.
3. The applicant moved an anticipatory bail application in the present case which has been rejected by the Session Judge, Jalaun at Orai on 1.7.2019, hence the present bail anticipatory bail application.
4. It has been contended by the learned counsel for the applicant that the name of the applicant came into light in the confessional statement of co-accused persons, who were arrested on the spot and have inimical relationship with the applicant. The allegation made against him is that he fled away from the place of occurrence along with co-accused Onkar. He submits that against the co-accused persons, who were named in the F.I.R. charge-sheet was submitted and so far as applicant is concerned investigation against him is pending. He has been falsely implicated in the present case only on the basis of disclosure of his name by the co-accused persons, who were arrested on the spot. He submits that it is highly improbable that the applicant fled away from the place of occurrence though on both sides of the vehicle in question 15 police personnel were standing. No incriminating article has been recovered either from the possession of the applicant or on his pointing out. He submits that the applicant is suffering from some diseases and had gone under surgery at Medanta Hospital, Gurgaon. He submits that the learned Session Judge, Jalaun at Orai in a summarily manner without applying judicial mind rejected the anticipatory bail application of the applicant, hence he filed the present application before this Court seeking anticipatory bail to the applicant. He pointed out that all the other co-accused persons, who were named in the F.I.R. were granted bail by this Hon'ble Court. He further pointed out that though in the order of the Session Judge it has been mentioned that the applicant has a criminal antecedent of eight cases but the applicant is in fact involved in only six cases which are explained in para-18 of the present application.
5. Learned A.G.A. has vehemently opposed the prayer for anticipatory bail and submitted that the illegal liquor which is said to have been recovered from the possession of the co-accused persons kept in a vehicle was in a large quantity. He submits that as per the F.I.R. the applicant and co-accused were also present in the said vehicle and were sitting adjacent to the driver seat and when the said vehicle was got stopped by the police, the applicant and co-accused Onkar fled away from the place of occurrence. He pointed out that the applicant as per the order of the Session Judge has a criminal history of eight cases out of which some were under the Excise Act. Moreover, the writ petition, i.e., Crl. Misc. Writ Petition No. 6540 of 2019 filed by the applicant praying for stay of his arrest in the present case was rejected by this Court vide order dated 12.3.2019.
6. The provisions of Section 438 Cr.P.C. lay down guidelines for considering the anticipatory bail application, which read as under:
"438. Direction for grant of bail to person apprehending arrest.-
(1) Where any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that court may, after taking into consideration, inter alia, the following factors, namely:-
(i) The nature and gravity of the accusation;
(ii) The antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail."
7. There is no substantial difference between Sections 438 and 439 Cr.P.C. so far as appreciation of the case as to whether or not a bail is to be granted, is concerned. However, neither anticipatory bail nor regular bail can be granted as a matter of rule. The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail.
8. The Apex Court in the case of State of M.P. v. Ram Kishna Balothia, AIR 1995 SC 1198, this Court considered the nature of the right of anticipatory bail and observed as under:
"We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code..... Also anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21."
9. The Apex Court in Siddharam Satlingappa Mhetre reported in (2011) 1 SCC 694 after considering its earlier judgments laid down certain factors and parameters to be considered while considering application for anticipatory bail :
"122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Section 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.
124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record."
10. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.
11. In this context, it would not be out of place to mention here that the judgment of the Apex Court reported in (2012) 4 SCC 379 Jai Prakash Singh v. State of Bihar wherein the Apex Court has reiterated the aforesaid parameters for the grant of anticipatory bail under section 438 Cr.P.C.
12. Thus, so far as the instant case is concerned, the recovery which has been made from the vehicle in question from which the petitioner is said to have fled away and the co-accused, who were arrested on the spot and disclosed the identity of the petitioner, who also named in the F.I.R. huge quantity of illegal liquor and other items goes to show that the offence in question is of grave nature and further the antecedents of the petitioner which are eight in number as is apparent from the order of the learned Sessions Judge rejecting his anticipatory bail.
13. It cannot be said that the accusation has been made only with the object of injuring or humiliating the petitioner by arresting him, hence in view of the settled proposition of law regarding anticipatory bail in the aforesaid judgments of the Apex Court referred above, I am not inclined to grant anticipatory bail to the petitioner, hence the anticipatory bail application of the applicant Veer Singh @ Veerendra Singh. involved in Case Crime No. 05 of 2019 under section 60/72 of U.P. Excise Act and 419, 420, 467, 468, 471, 272 I.P.C., police station Dakor, District Jalaun is hereby rejected.
14. However, it will be open for the applicant to appear before the court below and apply for regular bail under section 439 Cr.P.C.
Order Date :- 10.7.2019 Shiraz