High Court

Legal Reasoning

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8409 of 2023 Applicant :- Amarnath Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Lalit Kumar Srivastava,Awadhesh Kumar Malviya,Dinesh Kumar Sharma Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J. 1. This application has been moved on behalf of the applicant Amarnath Yadav seeking anticipatory bail in Case Crime No. 114 of 2023, under Sections 504, 506, 386, 419, 420, 467, 468 IPC, P.S. Baragaon, District Varanasi. 2. Heard learned counsel for the applicant, learned counsel for the informant as well as the learned A.G.A. for the State and perused the record. 3. The prosecution story, in nutshell, is that the real owner of the property in question, Smt. Nirmala Devi, executed a sale deed in favour of the wife of the informant in the year 2011 and handed over the possession thereof to her but the applicant along with co- accused persons is creating hindrance and interfering in the peaceful possession of the informant over the property in question on the basis of forged agreement to sale. F.I.R. was lodged and investigation started, which is still going on. 4. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. It is further submitted that Smt. Nirmala Devi, the previous owner of the property, executed power of attorney in favour of her husband Rajendra Prasad Singh and on the basis of said power of attorney an agreement to sale was executed on 30.5.2011 by the said Rajendra Prasad Singh in favour of the present applicant and possession thereof was also handed over to the applicant. It is also submitted that one injunction suit has also been filed by the applicant against Smt. Nirmala Dev, her husband Rajendra Prasad Singh and Smt. Soni, wife of the informant before the competent court, which is still pending. It is further submitted that the applicant falls in the category of bonafide purchaser. He has committed no fraud and is in legal possession over the property in question. The investigation of the case is going-on and charge- sheet has not been filed. The applicant is cooperating in the investigation. It has been submitted that in case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate in the investigation and would obey all conditions of bail. 5. Learned A.G.A. and learned counsel for the informant have opposed the prayer for anticipatory bail and submitted that the present applicant is the mastermind of the whole crime. As per the report obtained under the R.T.I. by the informant from the Chief Treasury Officer, Varanasi this fact is explicitly clear that the stamp used in the execution of the agreement to sale is forged and no such stamp was issued from the Treasury, Varanasi. It is also submitted that on the basis of agreement to sale, no right accrues in favour of the applicant. Applicant is not in the possession of the property in question and has committed big fraud whereas wife of the informant is in fact bonafide purchaser of the property in question. 6. I have considered the rival submissions made by the learned counsel for the parties. 7. In this matter, from a perusal of the record it reveals that investigation is going on and at this stage no conclusion can be drawn in respect of the genuineness of the agreement to sale. Civil proceedings are also going on in respect of the property in question. Dispute appears to be of civil nature. 8. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion. 9. In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held 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, then there is no compulsion on the officer to arrest the accused. 10. Considering the settled principles of law regarding anticipatory bail, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till filing of police report under Section 173(2) CrPC before the Competent Court. 11. The application is allowed accordingly. 12. In the event of arrest of the applicant, he 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 Station House Officer of the police station concerned with the following conditions:- (i) The applicant shall make himself available for interrogation by a police officer as and when required. (ii) 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/her from disclosing such facts to the Court or to any police office. (iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned. 13. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant. Order Date :- 3.8.2023 /safi Digitally signed by :- MAHBOOB SAFI High Court of Judicature at Allahabad