Nishchay Arya v. State of U.P Thru. Prin. Secy. Home Civil Secrt. Lko

Court No. - 15 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 513 of 2024 Applicant :- Nishchay Arya Opposite Party :- State Of U.P Thru. Prin. Secy. Home Civil Secrt. Lko. Counsel for Applicant :- Sikandar Yadav Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.

¶1Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.

¶2The present anticipatory bail application has been moved by the accused/applicant-Nishchay Arya, in Case Crime No.132 of 2022, under Sections 420, 504, 506 IPC, Police Station-Hussainganj, District-Lucknow, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

¶3Learned counsel for the applicant at the out set submits that since the charge sheet has been submitted in this case without arrest of the applicant and the charged offences against the applicant are punishable with up to seven years of imprisonment. The applicant is intending to move a regular bail application before the trial court. However, he is apprehending that during the course of the disposal of that regular bail application, he may be confined in prison contrary to the law laid down by the Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another, 2021 SCC Online SC 922. Thus, it is prayed that a suitable direction be given to the trial court in view of the law laid down by the Supreme Court in the case of Satender Kumar Antil (supra).

¶4Learned AGA on the other hand submits that already a mechanism has been devised by the Supreme Court for the cases punishable with up to seven years of imprisonment, wherein charge sheet has been submitted without arresting the accused.

¶5Having regard to the submissions made on behalf of the parties, it is reflected that the charge sheet in this case has been filed against the applicant without arresting him pertaining to the offences, which are punishable with up to seven years of imprisonment. The Hon'ble Supreme Court in the case of Satender Kumar Antil (supra) has chalked out a complete mechanism with regard to the offences punishable with up to seven years of imprisonment, wherein charge sheet has been filed without arresting the applicant, as he has cooperated in the investigation. The said law appears to be applicable to the factual matrix of this case with equal force.

¶6For ready reference of the trial court, the observations made by the Hon'ble Supreme Court in Satender Kumar Antil (supra) is reproduced 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.

¶4Needless to say that the category A deals with both police cases and complaint cases.

¶5The 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.

¶6We 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." (emphasis mine)

¶7The 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 had 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. xxxxxxxxxx"

¶10A 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.

¶11Insofar 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."

¶8Hon'ble Supreme Court in another case Siddharth v. State of UP : 2021 SCC OnLine SC 615 opined as follows: "9. We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the investigating officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word "custody" appearing in Section 170 Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the investigating officer before the court while filing the charge-sheet.

¶10We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused."

¶9The above mentioned law reports would reveal that the Hon'ble Supreme Court has chalked out a complete mechanism for the offences punishable with up to 7 years of imprisonment in the above Satender Kumar Antil (supra), Aman Preet Singh (supra) and Siddharth(supra), thus, without going into merits and demerits of the allegations and counter allegations of the parties, the instant application moved by the applicant-Nishchay Arya, is finally disposed of in terms that the applicant may move appropriate regular bail application before the trial court within 20 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 laid down by Hon'ble Supreme Court in Satender Kumar Antil (supra), Aman Preet Singh (supra) and Siddharth(supra).

¶10Having regard to the law laid down by the Hon'ble Supreme Court in 'Nathu Singh Vs. State of U.P. and Others' :(2021) 6 SCC 64, to facilitate the surrender/appearance of the applicant before the trial court, it is provided that for the next 20 days i.e., till 30.03.2024, applicant-Nishchay Arya, in case of his arrest under any process of the trial court, shall be released on anticipatory bail on his 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/ Investigating Officer and trial court subject to the following conditions:

(1) The applicant shall surrender before the trial court within next 20 days from today i.e., on or before 30.03.2024 and on his surrender/appearance and trial court shall dispose of his regular bail application strictly in accordance with law propounded in case of Satender Kumar Antil (supra), Aman Preet Singh (supra) and Siddharth(supra).

(2) If the applicant shall not appear before the trial court on or before 30.03.2024, the trial court thereafter shall be free to issue coercive process against him for procuring his presence before the trial court.

¶11It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the trial proceedings in any matter.

¶12If the applicant will not follow the terms of this order set-forth herein-before, after passage of 20 days from today i.e., after 30.03.2024, he shall not be entitled for any protection of the instant order and the trial court shall be free to issue coercive process against him for his appearance. Order Date :- 11.3.2024 Ashutosh High Court of Judicature at Allahabad, Lucknow Bench