Saturday, October 1, 2022

Allahabad High Court allows anticipatory bail application of Army personnel

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The Allahabad High Court has allowed the anticipatory bail application of Army personnel Manish Yadav.

A Single Bench of Justice Rajesh Singh Chauhan passed this order while hearing a Criminal Misc  Anticipatory Bail Application U/S 438 CrPC filed by Manish Yadav.

By means of the anticipatory bail application, the applicant has shown his apprehension of arrest in Case under section 147, 323,354,504, 506, 376 IPC, P.S, Shadiyabad, District Ghazipur.

The attention has been drawn towards the impugned FIR wherein the applicant is not named and no allegation of any kind whatsoever has been leveled against him.

Counsel for the applicant submitted that having ulterior motive and extraneous design in her mind the informant has deliberately and intentionally not named the applicant in the FIR as she has stated herself as wife of the applicant. At the time of lodging of FIR she has given the impression that she is the wife of the applicant.

The applicant is an Army personnel serving in the Indian Army, presently posted at Line of Control, China Border. He has got married with one Priya Yadav as certificate of marriage to that effect has been enclosed with the application.

The counsel has further submitted that the applicant is not married to the informant / complainant. Since the informant / complainant is not the married wife of the applicant, therefore, she could have not entered into the house of the applicant in his absence, showing herself as his wife when his family members were fully aware that he is married to Priya Yadav.

However, while recording her statement u/s 164 CrPC, as per the anticipatory bail rejection order passed by the learned court below, the complainant / informant has stated that she was having affair with applicant for a long time and they got married in one temple.

Counsel for the applicant also submitted that no credible evidence has been provided to the investigating officer by the informant / complainant and the investigation is still going on.

The applicant is posted at Line of Control, China Border and he could not know about any investigation being pending. As a matter of fact no summon to cooperate with the investigation is served upon the applicant nor any bailable or non bailable warrant has been served upon the applicant to cooperate with the investigation.

The Court noted that,

The Court in re: Vinod Kumar Singh @ Vinod Singh vs State of UP in Case order dated 10.12.2021 was pleased to set aside the proclamation issued u/s 82 CrPC for the reason that before seeking proclamation u/s 82 CrPC the investigating officer has not taken prior steps and has not filed such application before the learned court below on affidavit.

Therefore, in the aforesaid case the direction was issued to Director General of Police, UP to issue appropriate circular fixing guidelines to the effect that the investigating officer shall file an affidavit before the court concerned apprising that he has taken all necessary steps seeking cooperation of the accused but the accused is not cooperating with the investigation.

In the case no such affidavit has been filed by the Investigating Officer and no material was shown to the court-below to convince that before issuing proclamation all prior necessary measures have been adopted by the Investigating officer concerned.

Counsel for the applicant said that the applicant has filed anticipatory bail application before the learned court-below prior to issuance of proclamation issued u/s 82 and 83 CrPC inasmuch as his anticipatory bail application was filed in the month of April, 2022 and has been rejected on 30.4.2022. The proclamation u/s 82 CrPC has been issued by the court-below on 9.5.2022.

Therefore, Counsel has submitted that the bar so imposed by Apex Court to the effect that if the proclamation u/s 82 and 83 CrPC is issued, no anticipatory bail application can be entertained would not be attracted in the instant case inasmuch as when the applicant has filed his anticipatory bail application before the court below, there was no proclamation u/s 82 CrPC.

Admittedly, such proclamation is issued after rejection of his anticipatory bail application by the court below.

The Court said that, if any person has filed any anticipatory bail application before the court below seeking anticipatory bail showing his reasonable apprehension of arrest in a case where the allegations of the prosecution prima facie do not corroborate with the material available on record and his / her anticipatory bail application is rejected, he / she has got a right to approach the High Court for such anticipatory bail and if in the interregnum period any proclamation u/s 82 & 83 CrPC is issued, it may be considered as a circumventive exercise being taken by the Investigating Officer. No one can be restrained from taking legal recourse strictly in accordance with law and such legal right may not be prevented even if any process is adopted by any authority which is not permissible under the law.

Per contra, AGA has opposed the prayer of anticipatory bail but could not dispute the factual and legal submissions of the counsel for the applicant. AGA has submitted that the investigation is going on.

The Court  observed that when the applicant had filed the anticipatory bail application before the court below there was no proclamation u/s 82 CrPC. Such proclamation has been issued after the rejection of anticipatory bail application of the applicant by the court below, therefore, the bar to entertain anticipatory bail application after issuance of proclamation u/s 82 CrPC would not be attracted in the case.

The Court further said that the anticipatory bail application can be filed u/s 438 CrPC either before the High Court or before the court of sessions. However, normally a person should approach the Court of sessions and if the anticipatory bail application is rejected, the High Court can be approached under the same section i.e section 438 CrPC. Therefore, for filing anticipatory bail applications both the aforesaid courts have got concurrent powers.

The Court further observed that when the anticipatory bail application of the applicant was rejected on 30.4.2022, an application for seeking a proclamation order was filed by the Investigating Officer and such order was issued on 9.5.2022. Further, the proclamation order dated 9.5.2022 does not disclose that the investigating officer has filed an affidavit before the court concerned to convince that all prior steps which are required under the law have been taken; as to whether the summons, bailable warrant and non-bailable warrant have been served upon the applicant or not; as to whether before issuing the non-bailable warrant against the applicant the court below has convinced itself about the service of summons and bailable warrants.

The Court also said that in the case the informant / complainant has not leveled any allegation against the applicant in the FIR. As a matter of fact, the applicant is not named in the FIR. It is beyond any comprehension that if the informant / complainant was having any grievance, more so genuine grievance against the applicant, any sort of allegation would have been leveled in the FIR, therefore, the allegations are subject to the investigation which is under progress and it is legitimately expected that such investigation shall be conducted and concluded strictly in accordance with law.

“In this case when the applicant filed his anticipatory bail application, he was not a proclaimed offender. His right to file such application before the court was consequential as he could have approached the High Court u/s 438 CrPC after rejection of his application by the sessions court which was also filed u/s 438 CrPC. Therefore, when the applicant filed his application u/s 438 CrPC he was not a proclaimed offender so the bar imposed by the Apex Court entertaining anticipatory bail of the proclaimed offender would not attract in the case.

Therefore, in view of what has been considered above and also in view of dictum of Apex Court in re: Sushila Aggarwal (supra), I find it appropriate that the liberty of the applicant be protected till filing of the police report, u/s 173(2) CrPC and if any charge-sheet is filed, the liberty of the applicant shall be protected till conclusion of trial”, the Court observed while allowing the anticipatory bail application.

Therefore, the Court directed that in the event of arrest, applicant Manish Yadav shall be released on anticipatory bail in the aforesaid case crime number on his furnishing a personal bond of Rs 50,000/- with two sureties each in the like amount to the satisfaction of the arresting authority/ court concerned with the following conditions:-

1. that the applicant shall make himself available for interrogation by a police officer as and when required;

2. 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 or tamper with the evidence;

3. that the applicant shall not leave India without the previous permission of the court;

4. that in default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant;

5. that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;

6. that the applicant shall not pressurize/ intimidate the prosecution witness;

7. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

8. that in case of breach of any of the above conditions the court below shall have the liberty to cancel the bail.

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