High Court
Case Details
Neutral Citation No. - 2024:AHC:119605 Court No. - 68 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6997 of 2024 Applicant :- Ram Chandra Pal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mithilesh Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J. 1. List has been revised.
Legal Reasoning
2. Heard learned counsel for applicant as well as Sri Sunil Kumar, learned A.G.A. for State and also perused the material available on record. 3. The present application for anticipatory bail has been filed for protection in regard to Criminal Case No. 5842 of 2018 arising out of FIR/Case Crime No. 646 of 2018, under Sections 419, 420 I.P.C., P.S.- Colonalganj, District- Prayagraj. PROSECUTION STORY: 4. As per prosecution story, the applicant is stated to have entered into an agreement to purchase 9 biswa of land of the informant from Arazi nos. 1325/1, 1325/2, 1325/3 but instead, the applicant is stated to have committed forgery with the informant, who happens to be a lady and got the sale deed of the whole land executed in his favour. ARGUMENTS ON BEHALF OF THE APPLICANT: 5. Learned counsel for the applicant has stated that the applicant has been falsely implicated in the present case. The case of civil nature has been converted into criminal one by the informant. 6. The informant had sold the rest of the land to another person and an FIR has been instituted by the applicant against the informant on 16.12.2014 regarding the said sale deed, which was registered as Case Crime No. 1168 of 2014. The instant FIR is a counterblast to the said FIR. 7. The applicant has a criminal history of two cases and the same stands explained vide paragraph 29 of the affidavit accompanying the present application and the orders thereof have been appended as Annexures-13 and 14 of the affidavit. 8. This is the second anticipatory bail application. The first application was filed by the applicant and the same was withdrawn and this Court was pleased to pass the following order on 22.4.2024 :- "1. List has been revised. 2. Heard Sri Mithilesh Kumar Tiwari, learned counsel for applicant as well as Sri R.P. Patel, learned Additional Government Advocate for State and Sri Mahesh Kumar, learned counsel for the informant. 3. The present application for anticipatory bail has been filed for protection in regard to Criminal Case No.5842 of 2018 arising out of Case Crime No.646 of 2018 under Sections 419, 420 I.P.C., P.S.- Colonalganj, District- Prayagraj. 4. After aruing for some time, applicant's counsel submits that the present application for anticipatory bail may be dismissed as withdrawn with a direction to file a regular bail application which may be decided keeping in view the guidelines as laid down by the Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and another reported in 2022 SCC OnLine SC 825. 5. Learned A.G.A. has no objection to the prayer of learned counsel for the applicant. 6. After hearing learned counsel for the parties, no case is made out for interference U/s 438 Cr.P.C. The present anticipatory bail application is disposed of with a direction that the applicant shall surrender before the concerned court within one month from today and in case a regular bail application is filed, the same be decided in view of the law laid down by the Supreme Court in case of Satender Kumar Antil (supra). 7. For the period of one month from today or till the time of surrender of the applicant before the concerned court, whichever is earlier, no coercive action shall be taken against the applicant, in the above case." 9. Subsequently, the victim underwent heart surgery and was admitted at Medanta Hospital on 12.5.2024 and Coronary Artery Bypass surgery was conducted on 13.5.2024 and he was discharged on 20.5.2024. The steel wires were placed to unite the sternum, as such, the applicant is unable to walk and he has been advised rest for three months by the Associate Consultant Cardiac Surgery. The said medical certificate is filed as Annexure-12 to the affidavit alongwith other documents of the treatment of the applicant, as such, he is entitled for anticipatory bail. 10. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. In case, the anticipatory bail application of the applicant is allowed, he will not misuse the liberty and shall cooperate with trial. ARGUMENTS ON BEHALF OF STATE: 11. Per contra, learned A.G.A. has vehemently opposed the prayer for anticipatory bail and has stated that the applicant is not entitled for anticipatory bail, as he has already availed the said opportunity earlier on and has misused it. The applicant is used to approaching this Court, as he had earlier on filed a petition u/s 482 Cr.P.C. No. 42791 of 2023, which was disposed of on 19.12.2023 with the direction for the applicant to apply for bail in light of the judgement of the Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation and another, reported in (2022) 10 SCC 51 and the same was passed by this Court to the first anticipatory bail application filed by the applicant earlier on and there is no provision, whatsoever, to file the second anticipatory bail application, as such, he is not entitled for any protection, whatsoever.
Decision
12. The criminal history also has not been properly explained, as the applicant has not been enlarged on bail in Criminal Case No. 2748 of 2015 alongwith Case Crime No. 309 of 2014, and he had approached this Court again by filing a petition u/s 482 Cr.P.C. No. 39746 of 2016 and the same was also disposed of with the directions to the applicant to file a discharge application and the applicant was granted protection of four weeks vide order dated 18.1.2017, as such, the applicant is not entitled for bail on the ground of the unexplained criminal history of the said Case Crime No. 309 of 2014. ARGUMENTS IN REBUTTAL ON BEHALF OF THE APPLICANT: 13. In rebuttal, learned counsel has stated that the said discharge application was moved well within time by the applicant through his counsel, which has not been disposed of to date, as such, the applicant is entitled for bail, as his criminal history stands explained. CONCLUSION: 14. This is the second anticipatory bail application and there is no provision, whatsoever, in the Code of Criminal Criminal Procedure to apply for second anticipatory bail application. 15. The applicant had availed the opportunity of Section 482 Cr.P.C. and failed, as such, he is not entitled for anticipatory bail in light of the judgement of this Court passed in Shivam vs. State of U.P. and another, AirOnline 2021 All 484. Paragraph 43 of the judgement has been reproduced hereinbelow:- "43) However, in the following cases, anticipatory bail cannot be granted to an accused after submission of charge-sheet :- 1) Where the Investigating Officer has submitted charge-sheet but it is argued that the statements of the witnesses recorded are not truthful. Truthfulness or otherwise of the statements of the witnesses recorded by investigating officer in support of complaint case are to be tested during trial and not at the stage of consideration of anticipatory bail application; 2) Where the F.I.R/complaint discloses the alleged offences and the Investigating Officer has collected material which supports the same, without any contradiction, even after considering the statements/material provided by the accused side; 3) Where there are cross cases registered by both the parties against each other and the offences alleged is fully proved and charge-sheet has been submitted. Since the incident, as alleged, has been found to have taken place and both the parties admit such an occurrence, hence, there is no doubt about the incident taking place; 4) Where charge-sheet has been submitted after compliance of the legal formalities like sanction for prosecution and the F.I.R/complaint has been lodged by the competent authority and there is supporting evidence; 5) Where the counterblast implication is alleged that earlier incident took place much before with the incident in dispute and there is no proximity of the second incident in terms of time with the second incident; 6) Where there exists a civil remedy but on the same set of allegations, civil wrong and criminal wrong both are made out and charge-sheet has been submitted only regarding the criminal wrong; 7) Where the Investigating Officer has approached the accused for recording of his statement during investigation and he has refused to give his statement to the Investigating Officer in his defence and charge-sheet has been submitted against him; 8) Where the accused has unsuccessfully challenged the charge-sheet before this Court or any proceedings are pending before this Court regarding the charge-sheet submitted against the accused; 9) Where the offence alleged is serious in nature, the accused is habitual in criminality, tendency of abscondance, has violated the conditions of bail granted to him earlier, etc.; and 10) Where the accused is avoiding appearance before the Court after the cognizance of offence has been taken by the Court on a police report or in a complaint and coercive processes have been repeatedly issued against him and there is no valid explanation given by the accused for his non- appearance before the Court." 16. The new ground placed by learned counsel for the applicant that he has been advised three months rest by the doctor but the said certificate filed as Annexure-12 does not bear any date of issuance of the said certificate. 17. It is further observed by this Court that the applicant was admitted in hospital on 12.5.2024 and had undergone Coronary Artery Bypass surgery on 13.5.2024 and was discharged on 20.5.2024. The placing of steel wires in the sternum is normal procedure taken up during the bypass surgery and is removed after a particular time, as such, it also cannot be a ground for granting bail to the applicant. 18. In Satpal Singh vs. State of Punjab (2018) 13 SCC 813, the Supreme Court has held that the satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail. In Pratibha Manchanda and another Vs. State of Haryana and another (2023) 8 SCC 181, the Supreme Court has opined that the relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. 19. A three Judge bench of the Supreme Court in Criminal Appeal Nos.872-873 of 2020 'Dr. Naresh Kumar Mangla Vs. Smt. Anita Agarwal & others' held that: "19. It is apposite to mention here the distinction between the considerations which guide the grant of anticipatory bail and regular bail. In Pokar Ram vs. State of Rajasthan (1985) 2 SCC 597, while setting aside an order granting anticipatory bail, this Court observed: 5. Relevant considerations governing the court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. Three situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other. This is necessary to be stated because the learned Judge in the High Court unfortunately fell into an error in mixing up all the considerations, as if all the three become relevant in the present situation. 6. The decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 clearly lays down that "the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest". Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement. In para 31, Chandrachud, C.J. clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. Says the learned Chief Justice that in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. It was observed that "it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides, and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond". Some of the relevant considerations which govern the discretion, noticed therein are "the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and 'the larger interests of the public or the State', are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail". A caution was voiced that "in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it". 20. Considering the rival submissions advanced by the learned counsel for the parties and also the fact that the applicant has not complied with the earlier orders of this Court passed on 19.1.2023 and 22.4.2024 coupled by the fact that the bypass surgery has been conducted on the applicant on 13.5.2024, and much time has elapsed since then, I do not find it a fit case for grant of anticipatory bail to the applicant as the arguments advanced by learned counsel for the applicant pertain to regular bail application and cannot be agitated u/s 438 Cr.P.C. at this stage. 21. In view of the above, the present anticipatory bail application is found devoid of merits and is, accordingly, rejected. Order Date :- 26.7.2024 Shalini (Justice Krishan Pahal)