Allahabad High Court
Charanjit Singh vs State Of U.P. on 21 November, 2019
Author: Karuna Nand Bajpayee
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50954 of 2019
Applicant :- Charanjit Singh
Opposite Party :- State of U.P.
Counsel for Applicant :- Syed Imran Ibrahim
Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
Sri Anurag Shukla, Advocate has filed power on behalf of the first informant today in Court, which has been taken on record.
Heard Sri Jaspreet Singh Rai, Advocate assisted by Sri Syed Imran Ibrahim, learned counsel for the applicant, learned A.G.A. appearing for the State and Sri Anurag Shukla, learned counsel for the first informant. Perused the record.
Submission of learned counsel for the applicant is that the marriage of the applicant was solemnized with Smt. Rashmeet Kaur/first informant on 05.12.2014 in accordance with Sikh rites and rituals at Hapur. In fact at no point of time, the applicant or his family members had demanded dowry or had committed cruelty upon the first informant. A baby boy was also born on 19.6.2017 out of the wedlock of the applicant and the first informant. But unfortunately some marital dispute arose in the year 2018 and the first informant along with her minor son had left her matrimonial home and started living with her parents. After more than one year of leaving her matrimonial home, the first informant had filed a complaint on 25.6.2019 with C.A.W. (Cell), Hapur making blanket allegations against the applicant and his family members. In pursuance of the aforesaid complaint mediation proceedings were held before the C.A.W. (Cell), Hapur and the applicant had participated in the mediation proceedings on several dates. Eventually the first informant out of her own volition made an application dated 16.8.2019 with the prayer to withdraw the aforesaid complaint. Upon receiving the said application from the first informant the mediation proceedings were closed. Submission is that the perusal of the application dated 16.8.2019 as well as the report of concerned authority shows that the only reason for marital discord was that the applicant was not providing his wife/first informant a separate floor for her at her matrimonial home. Surprisingly the first informant moved a fresh application under Section 156(3) of Cr.P.C. before the court of C.J.M., Hapur on 27.9.2019 with the prayer that a suitable direction may be given to the concerned S.H.O. for lodging of F.I.R. against the applicant and his family members and to investigate the same. The application was allowed by the learned Magistrate and thereafter the F.I.R. of the present case was registered on 15.10.2019 with absolutely false allegations. Submission is that at earlier point of time the first informant had herself withdrawn her complaint from the C.A.W. (Cell) Hapur/Mahila Thana, but has again initiated criminal proceedings against the applicant and his family members and has falsely implicated them with imaginary and highly improbable charges. As per the allegations made in the F.I.R., on 17.9.2019 when the victim-wife was still residing with her parents at Hapur, the applicant, his sister, his father and mother are said to have tried to commit murder of the first informant. It is said that the applicant went to the parental house of the wife/first informant and then took her to a park where the applicant's sister, his father and mother were all present already and then the moment she reached there, all of the accused persons including the applicant pounced upon her, brought her down to earth and attempted to strangulate her to death. Submission is that the allegations of such nature bristle with high improbability and no man of common prudence would tend to believe that the entire family members of the applicant including his sister, his mother and father would be coming all the way to first informant's town and then for no rhyme or reason would indulge in an act like this and that too when it was well within the knowledge of the parents of the first informant that she was going along with her husband to the said park for amicable negotiations. Such kind of implausible story deserves to be disbelieved for reason of its absurdity itself. The applicant's counsel has further emphasized that in fact on that very day the applicant was very much present in his office at Gurugram. Attention in this regard has been drawn towards annexure no. 19 of the present application which is the copy of an E-Mail issued by the employer of the applicant with the door access logs of the office for date 17.9.2019. Submission is that the aforesaid door access logs conclusively shows that the applicant was at his work place in Gurugram on 17.9.2019 at the time of incident and it was simply not possible for the applicant to reach Hapur which is several miles away from Gurugram. According to the counsel for the applicant, the C.C.T.V. footage of his residence also shows that on 17.9.2019 the rest of family members of the applicant were at their own home for the entire evening. Counsel lastly submitted that the present F.I.R. has been lodged against the applicant and his family members with ulterior motives to harass them. Contention of learned counsel for the applicant is that at any rate, the material collected by the investigation so far is not credible or adequate enough at this stage to substantiate the indictment made against the applicant and the matter deserves much deeper and fair investigation into the case.
It has also been submitted by the learned counsel for the applicant that the applicant has no serious criminal history and he has not undergone any imprisonment after conviction by any court in respect of any cognizable offence previously. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and he undertakes to make himself available to the police authorities or the court whenever required, and shall not flee from justice. The applicant is also ready to accept all the conditions which the Court may deem fit to impose upon him. Learned counsel has also tried to submit that the accusation against the applicant has been made with the object of besmirching his reputation and belittle him in the public estimate. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at some length. It has been submitted that the applicant has reason to believe that he may be arrested on the basis of accusation that has been made against him for having committed the alleged offence, therefore, in the event of such arrest he may be released on bail.
Learned counsel for the applicant has also tried to canvass before the Court that there has been a consensus of judicial opinion on the point that the provisions under Section 438 Cr.P.C. intend to extend a protective arm in support of implicated accused saving him from unnecessary incarceration and minimize the period of detention as much as it is practically possible to do in matters where the Court prima facie feels satisfied that the indicted accused deserves the relief contemplated by law as has been enacted by the legislature in this regard. Contention is that, therefore, the provision ought to be exercised liberally and be given full play, lest the same may fail to meet out its objective and the accused should not be called upon to establish a "special case" in order to get the benefit of this provision which is well in keeping with the spirit of Article 21 of the Constitution of India.
Learned A.G.A. and learned counsel for the first informant have opposed the prayer for bail and have shown some discrepancy in the record of doors access log which was produced by the applicant in his defence. It was also submitted that a notice under Section 41A of Cr.P.C. was sent by the investigating officer of the present case but the applicant failed to appear before the Investigating Officer and as such had not co-operated with the investigation.
After considering the record of the case as is available before the Court in the light of rival submissions made at the Bar and keeping in perspective the nature and gravity of the accusation, antecedents of the applicant, his undertaking to make himself available to the authorities whenever required, and the overall facts and circumstances of the case, this Court feels satisfied that it would be expedient to grant an interim order of anticipatory bail in favour of the applicant at this stage.
At this stge, during the course of dictation of this order, learned counsel for the applicant has come up with a submission that since this Court proposes to extend the accused the indulgence of the interim anticipatory bail, an order interim in nature in accordance with the provisions of sub-section (2) of Section 438 Cr.P.C. of U.P. Act No. 4 of 2019 may not be made; instead, an order under sub-section (5) of Section 438 Cr.P.C. finally disposing of the application for anticipatory bail be made that is well within the powers of this Court to do, and such order if made, would avoid prolixity of proceedings. According to counsel the avoidance of protracted proceedings is the desirable course in such a matter which despite all its importance to the accused is after all an application for anticipatory bail.
In order to determine whether the course of action suggested by the learned counsel for the applicant, is one which is in tune with the statute, it would be gainful to extract the provisions of Section 438 Cr.P.C. as amended in their application to Uttar Pradesh vide Act No. 4 of 2019:-
"438. Direction for grant of bail to person apprehending arrest-
(1) Where any person has reason to believe that he may be arrested on 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:
Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub- section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.
(2) Where the High Court or, the case may be, the Court of Session, considers it expedient to issue on interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit, and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:-
(i) that the applicant shall make himself available for interrogation by a police officer as and when required;
(ii) 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 him from disclosing such facts to the Court or to any police officer;
(iii) that the applicant shall not leave India without the previous permission of the Court; and
(iv) such other condition as may be imposed under sub- section (3) of Section 437, as if the bail were granted under that section.
Explanation:- The final order made on an application for direction under sub-section (1); shall not be construed as an interlocutory order for the purpose of this Code.
(3) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendents of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(4) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order.
(5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under sub-section (1), within thirty days of the date of such application.
(6) Provisions of this section shall not applicable,-
(a) to the offence arising out of,-
(i) the Unlawful Activities (Prevention) Act, 1967;
(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985;
(iii) the Official Secret Act, 1923;
(iv) the Uttar Pradesh Gangsters and Anti- Social Activities (Prevention) Act, 1986.
(b) in the offences, in which death sentence can be awarded.
(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."
The submission of learned counsel for the applicant is that if in the opinion of this Court anticipatory bail is to be granted, it should be done in one go finally determining such bail application. He has been at pains to submit that passing an interim order in the first instance granting interim bail under sub-Section (2) of Section 438 Cr.P.C. and then posting the application for final orders under sub-section (5) would add to the burden of the Court where dockets with these kind of applications are already bursting. He submits that deferring the final determination of the application post grant of an interim order of anticipatory bail really has no purpose to subserve. It is the learned counsel's submission that in this matter, a more pragmatic and workable approach should be adopted by the Court where, as already said, the Court should grant anticipatory bail absolute in one stroke and dispose of the application, where it finds a case for the grant of it.
This Court has considered the submission put forward by the learned counsel for the applicant on this point. The scheme of Section 438 Cr.P.C. as amended in its application to the State of U.P. vide U.P. Act No. 4 of 2019 introduces a structured exercise of the power to grant anticipatory bail by this Court.
Sub-section (1) of Section 438 Cr.P.C. speaks about the persons and their circumstances who may move for grant of anticipatory bail. It also indicates certain factors, which this Court ought to take into consideration, while dealing with a plea for anticipatory bail by a person envisaged under Section 438(1). The criteria mentioned on the basis of which the plea is to be judged, is in no way exhaustive; that criteria has to be borne in mind, amongst others, which the Court may take into consideration. Sub-section (1) of Section 438 Cr.P.C. further envisages that on the first hearing of the application, the Court has two options; it may reject application forthwith, or pass an interim order, directing grant of anticipatory bail.
The proviso to Sub-section (1) of Section 438 Cr.P.C. also indicates by implication of a third option available to the Court where the Court may neither reject the application forthwith or grant an interim order directing anticipatory bail. It may pass some other order like adjourning the consideration of the application or pass an order calling upon the State to show cause why an interim order of the kind contemplated by sub-section (1) of Section 438 Cr.P.C. be not made. The proviso clearly postulates this kind of option where it says that "the High Court, or as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail", the police would have Authority to arrest the accused without warrant.
It brooks little doubt, therefore, that the Court under sub-section (1) of Section 438 Cr.P.C. can pass an order rejecting the application for anticipatory bail or pass an interim order granting on a probational basis, subject to further exercise in accordance with the succeeding provisions of Section 438 Cr.P.C. or to pass some other order neither rejecting the bail nor granting it. Since the power to grant anticipatory bail, in the first instance, flows from sub-section (1) of Section 438, this Court is of opinion that the only order that Court can make in favour of the accused at the first hearing of the application is an interim order granting him the indulgence of anticipatory bail. This view which the Court takes is fortified by sub-section (2) of Section 438 Cr.P.C. that enumerates that in cases where the Court passes an interim order granting anticipatory bail under sub-section (1), "the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit", to borrow the precise language of the statute in sub-section (2). Sub-section (2), therefore, envisages the next stage of the exercise of power to grant anticipatory bail, in cases where under Sub-section (1), the Court passes an interim order directing grant of bail. The fact that sub-section (2) envisages a date for "final hearing" of the anticipatory bail application is not consistent with the suggested course of exercise of power to be undertaken in one instance. Rather, sub-section (1) and (2) read together exclude the exercise of power to grant anticipatory bail in a single instance of its exercise.
Sub-section (3) is also a decisive pointer to the fact that once power under sub-section (1) to grant an interim order is exercised , a notice returnable in seven days together with a copy of the interim order is to be served upon the public prosecutor and the Superintendent of Police in order to afford the public prosecutor "a reasonable opportunity of being heard when the application shall be finally heard by the Court", again to quote the words of the statute.
In case, the suggestion of the learned counsel for the applicant were to be accepted that where the Court finds a case for anticipatory bail made out, the power should be exercised finally in a single instance or single stroke and the application be finally disposed of granting anticipatory bail, the provisions of sub-section (3) would be rendered otiose. It is a well established canon of statutory construction that a statute is not to be interpreted in a manner where any word of it, let alone a whole clause, may be rendered superfluous or nugatory. The submission of learned counsel for the applicant, if accepted, would precisely do the same mischief by depriving the Public Prosecutor of his right to be heard in opposition to the application for anticipatory bail before it is finally determined, and the right of the Superintendent of Police to be served with a notice together with a copy of the interim order granting anticipatory bail under sub-section (1) shall also stand stripped off to his detriment and eventually to the detriment of the prosecution side itself. The statute contemplates a statutory purpose, which can neither be neglected or ignored nor should the court ride roughshod upon the same.
Sub-section (4) postulates the courses that are open to the Court at the time of final hearing of the application of anticipatory bail. It has been envisaged that after the interim order granting anticipatory bail under sub-section (1) of Section 438 Cr.P.C., the Court may after hearing the Public Prosecutor and the Applicant and after considering their respective contentions, either "confirm, modify or cancel the interim order," again to quote the precise phraseology of the statute. The exercise of power under sub-section (4) is, and can be possible only in the nature of a culmination of the exercise that commences with the grant of an interim order under sub-section (1) of Section 438 Cr.P.C. The statutory scheme envisages a terminus with three distinct possibilities and it goes without saying that in choosing the options to confirm, modify or cancel the interim order, the Court has to act upon materials placed before it by the Public Prosecutor and the Applicant, before it renders decision.
In Bhavnagar University vs Palitana Sugar Mill Pvt. Ltd. & Ors. (2003) 2 SCC 111 acknowledging the principle of law that has withstood the test of time the Supreme Court held thus:-
"The statutory interdict of use and enjoyment of the property must be strictly construed. It is well-settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four-corners thereof. "
This Court has already indicated that the power to grant anticipatory bail is conferred by Section 438 Cr.P.C. as amended in its application to U.P. vide Act No. 4 of 2019 and the exercise of it is strictly regulated by statute. There is in the scheme of Section 438 not even a remote possibility in the considered opinion of this Court to exercise power to grant anticipatory bail in a manner that the anticipatory bail application may be heard finally and disposed of on the first date, without going through the entire statutory course envisaged under the different clauses. In the event the Court finds it to be a fit case, as it has been found to be so in the present matter, to grant an interim order under sub-section (1) of Section 438 Cr.P.C., the course suggested by the learned counsel for the applicant and all other courses must be held to be excluded by the statute.
This Court also finds it pertinent to observe that though sub-section (5) is in the nature of legislative mandate to the Court, be it High Court or the Court of Session to decide an application for anticipatory bail within a period of 30 days of the making of such an application, which underlines the desirability of early disposal of such applications but in case for any reason the final hearing does not take place on the dated fixed for this purpose by the Court, there is no need for any extension of the interim order which was passed at the first instance earlier. The interim order of anticipatory bail passed in the first instance shall inure and subsist till it is confirmed or modified or cancelled under section 4 of Section 438 of Cr.P.C. The interim order for grant of anticipatory bail passed under Section 438(1) of Cr.P.C. must not be confounded or confused with the bail orders that are passed by the Courts till next date of listing of regular bail application in the light of the pronouncements given in cases like Amrawati and another Vs. State of U.P. 2004 (57) ALR 290 or Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC). Such interim orders as are contemplated in the aforesaid pronouncements are not in compliance of any statutory scheme of law. But they are in the nature of a benefice interpretation of law or a benefice exercise of judicial discretion in favour of accused granting him indulgence of a short liberty to remain on interim bail and avoid unnecessary incarceration just because his regular bail application is not being heard for reasons of non-availability of papers or instructions or for the reasons of preoccupation of overburdened Courts with other work. These interim bails are ordinarily granted by the Courts till next date of listing of the matter and they come to an end on that date unless extended. In such matters when the regular bail application is heard finally the same is granted or rejected by the Court but such granting of bail or its rejection is not in the nature of any cancellation or confirmation or modification of any previous interim bail order. The final orders passed with regard to regular bail applications are not having any nexus with the interim bail that might have been passed by the Court in favour of the accused for interregnum period. There is no continuity between such interim order of bail and the final order that is passed in regular bail applications in due course. Unlike the final orders passed with regard to anticipatory bail as contemplated under Section 438(4) of Cr.P.C., the bail order passed in regular bail applications are not the evolutionary culmination of any previous interim bail order. The final order order with regard to anticipatory bail can be passed only under Section 438(4) of Cr.P.C., the exercise of which necessarily depends upon the prior existence of the interim order of anticipatory bail passed under Section 438(4) of Cr.P.C.
This Court, therefore, does not find any substance in the contention of the learned counsel for the applicant that this Court may dispose of, or has the power to dispose of this application for anticipatory bail at the first hearing finally.
Without expressing any opinion upon ultimate merits of the case, this Court directs that in the event of arrest, the accused-applicant- Charanjit Singh, involved in Case Crime No. 704 of 2019, under Sections 498A, 323, 307, 504, 506 I.P.C. 1860 and Sections 3&4 of Dowry Prohibition Act, 1961, Police Station Hapur Nagar, District Hapur, 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.
In order to ensure that the interim bail is not subjected to any misuse and in order to ensure that the statutory powers of investigation and its scope may not get impaired, it is being observed and directed that the accused-applicant shall not in any manner indulge in any activities or attempts which may adversely influence or impair the fair investigation of the case and he will make himself available to the police authorities or the Court, as the case may be, whenever required for the purpose of investigation or inquiry. The accused shall also not leave India without the permission of the Court during the subsistence of this order.
The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173(2) Cr.P.C.
The application for grant of anticipatory bail shall be finally heard on 31.1.2020 under Section 438(5) Cr.P.C. for passing the order thereupon.
Learned A.G.A has accepted notice on behalf of the State who may obtain instructions or, if desired, may file counter affidavit within two weeks positively. Rejoinder affidavit, if any, may be filed within a week thereafter. A.G.A. may obtain copy of this order and make necessary communication with S.P./S.S.P. concerned in this regard.
Order Date :- 21.11.2019 Naresh