The Lucknow Bench of the Allahabad High Court has rejected the anticipatory bail plea of former Shia Waqf Board chairman Syed Waseem Rizvi alias Jitendra Narayan Tyagi in the case of rape and robbery.

A Single Bench of Justice Mohd Faiz Alam Khan passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Jitendra Narayan Tyagi Alias Syed Waseem Rizvi.

The anticipatory bail application has been moved by the accused/ applicant- Jitendra Narayan Tyagi Alias Syed Waseem Rizvi in FIR/Crime under Sections 376, 323, 506 and 392 IPC, Police Station Saadatganj, District Lucknow with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

Senior Counsel appearing for the applicant while pressing the anticipatory bail application, submitted that the applicant has been falsely implicated in this case only on account of enmity with the husband of the informant/prosecutrix and like persons and he has not committed any offence as claimed by the informant/prosecutrix.

It is further submitted that the first information report has been lodged with a delay of more than five months and six days and the circumstances under which the FIR has been lodged by moving an application under Section 156 (3) CrPC throws a cloud of suspicion over the whole prosecution story.

It is also submitted that there is no medical evidence in support of the allegations of the victim/informant and the allegations as levelled by the prosecutrix/informant could not be believed in the background of the fact that the applicant has been provided with Y-Plus Security cover by the Government in which 16 police personnels always remain posted with the applicant and as such it is impossible for the applicant to commit the offence in the manner alleged by the informant/prosecutrix.

Senior Counsel said that the applicant has remained the Chairman of the Shia Central Waqf Board of Uttar Pradesh and having regard to the ideology of the applicant and petitions filed by him in the Hon’ble Supreme Court of India certain fundamentalists are against the applicant and they were instrumental in lodging this false F.I.R. against the applicant.

Senior Counsel further said that the applicant is a respectable citizen and had enjoyed a very high position of Chairman, Shia Waqf Board and arrest of the applicant in this case shall bring a bad name to his otherwise good reputation and would also injure his liberty. There is no requirement of any custodial interrogation as all the formalities pertaining to the investigation has already been completed by the investigating officer and there is no apprehension that after being released on anticipatory bail he may flee from the course of law or may otherwise be not available for trial.

Senior Counsel also said that criminal history of 31 cases is being alleged against the applicant, however, in majority of the cases the applicant has not been charge-sheeted or has been acquitted.

Azizul Hasan Rizvi, counsel representing the complainant/ informant submits that the applicant is accused of committing a heinous offence and keeping in view the manner in which the offence has been committed, the applicant is not entitled for anticipatory bail.

It is further submitted that the applicant is an absconder and enjoying a very high position and is a person having resources and it is under the influence of the applicant the investigation is being delayed and in this regard the informant/prosecutrix was compelled to approach the Court by filing a writ petition, whereby certain directions were given by the Division Bench of the Court and having regard to the security threat to the informant/complainant, the Commissioner of Police, Lucknow was also directed to take appropriate decision with regard to the security of victim.

Counsel for the complainant/informant also relied on Sub-section 376 (2)(n) of the IPC and submitted that as the rape has been committed with the prosecutrix by the applicant repeatedly, he is liable for enhanced rigorous imprisonment and keeping in view the fact that he is an absconder and is not appearing before the investigating officer, his application for grant of anticipatory bail be rejected.

The Court noted that,

Having heard counsel for the parties and having perused the record, it is evident that the first information report pertaining to the comission of rape by the applicant with the informant/victim/prosecutrix was lodged by the prosecutrix herself on 15.07.2021.

It has been alleged in the first information report that the applicant at the relevant point of time was having his office at ‘Shia Yateem Khana ‘ situated at Kazmain Road, Lucknow and was also residing there with his second wife.

It is also stated in the FIR that the applicant has also provided a quarter for the residence of the husband of the prosecutrix near Shia Yateem Khana where the prosecutrix was residing with her husband and children. It is also a case of the prosecution that the husband of the prosecutrix was occasionally sent by the applicant out of Lucknow and about five months ago when the husband of the prosecutrix was sent out of Lucknow by the applicant, the applicant had entered into her house at about 10:00 pm and committed rape on her after intimidating the prosecutrix of the life of her children.

It is also stated that thereafter the applicant used to commit rape with the prosecutrix occasionally, after sending her husband outside Lucknow and she remained silent as she was threatened and was also apprehended and intimidated.

It is also alleged that on 11th June, 2021 when informant had informed her husband about all the misdeeds of the applicant he approached the applicant to protest about his misdeeds but he was threatened by the applicant and under apprehension husband of the informant had vacated the residence provided by the applicant and since then the prosecutrix is living under apprehension and threat and anything bad may happen to her.

It is also submitted that the allegations of the FIR has been supported by the prosecutrix in her statement recorded under Section 161 and 164 CrPC. The criminal history of 35 criminal cases has also been alleged against the applicant.

The Court observed that,

Perusal of the case diary which has been supplied by the State would reveal that the first information report of the case could only be lodged after an order passed by the Magistrate under Section 156 (3) CrPC.

It is also evident that affidavits have also been given by the husband of the informant as well as by the informant stating that he is being pressured to withdraw the case and the informant/victim is also apprehending threat to her life. It is also evident that on various applications moved by the informant/victim, the Additional Chief Judicial Magistrate, Lucknow vide orders dated 08.11.2021, 06.01.2022, 13.01.2022, 11.02.2022, 19.02.2022, 15.04.2022 and 13.12.2022 has directed the investigating officer to conclude the investigation in a fair manner and with expedition. The Magistrate vide its order dated 13.01.2022 had also directed the investigating officer to conclude the investigation within 15 days.

It is also evident that during the course of investigation the investigating officer has recorded the statement of witnesses Hasan Jafar, Sartaj Alam, Syyed Ali Ammar Rizvi, Zafar Abbas, Hasan Raza, who have stated that they have seen the applicant on many occasions, going towards the quarter of the informant in absence of her husband.

“Perusal of the case diary would also reveal that it was on 20.12.2022 the investigating officer for the very first time started searching the whereabouts of the applicant and thereafter on various occasions the applicant was searched but his whereabouts could not be traced.

It is also evident that vide order dated 30.01.2023 non-bailable warrants have also been issued against the applicant by the Additional Chief Judicial Magistrate, Lucknow. It is vehemently submitted on behalf of the informant/victim that applicant is an influential person and it is on account of his influence he could not be traced and he has also not co-operated in the investigation and it is under his influence the investigation of the case has been delayed. Having regard to the various orders passed by the Magistrate directing the investigating officer to conclude the investigation at the earliest, prima facie there is substance in the apprehension of informant/victim. The State in its instructions has mentioned a long criminal history of the applicant comprising 35 cases starting from the year 1994 till 2022 and in the considered opinion of this Court, criminal antecedents and conduct of the accused is a relevant factor at the time of consideration of plea of anticipatory bail.

Having regard to all the facts and circumstances of the case and for the reasons placed above, I do not find any good ground to provide protection from arrest to the instant applicant”, the Court further observed while rejecting the anticipatory bail application.

The Allahabad High Court has granted anticipatory bail to former Union minister Chinmayanand Saraswati in connection with the 2011 Shahjahanpur Rape Case.

A single-judge bench of Justice Dinesh Kumar Singh passed this order while hearing a Criminal Misc anticipatory bail application filed by Swami Chinmayanand Saraswati’s pupil.

The bail application under Section 438 CrPC has been filed seeking anticipatory bail in case under Sections 376 and 506 IPC Police Station Kotwali, District Shahjahanpur.

The Court by the order dated 19.12.2022 has granted interim protection to the accused applicant.

The relevant averments made in the counter-affidavit tendered in the court on behalf of the complainant read as under:-

“2. The deponent is the first antiformant in Case Crime No1423 of 2011 lodged at Police Station Kotwali, District Shahjahanpur. It is pertinent to mention here that the deponent had preferred a letter to the Chief Minister, Government of Uttar Pradesh upon which a direction was issued and the instant criminal prosecution was lodged.

3. The Investigating Officer after conclusion of the investigation, has filed a charge sheet under Section 376 and 506 IPC.
4. That the Magistrate has proceeded to take cognisance and summoned the applicant in the case.
5. That the applicant of the case proceeded to prefer a criminal Mic Application under Section 482 CrPC before the Court assailing the summoning and cognizance order taken upon the charge sheet filed by the Investigating Officer of the case.
6. That the Court had granted interim order to the applicant in the case and in the meantime, the State Government had taken a decision for withdrawal of the instant prosecution and thus, the applicant had withdrawn the above-mentioned criminal misc application under Section 482 CrPC.
7. That in pursuance of the decision of the State Government for withdrawal of the criminal prosecution, the Public prosecutor had filed an application under Section 321 of CrPC for withdrawal of the case, but the same was rejected by the trial court in larger public interest and secured the ends of the justice.
8. That the deponent has no objection for withdrawal of the criminal prosecution and the deponent, the deponent has no interest in further prosecuting the aforesaid case.
9. That the deponent has no objection whatsoever if the instant criminal misc Anticipatory bail application is allowed and the application is enlarged on anticipatory bail.”

Manish Goyal and Mahesh Chndra Chaturvedi, Additional Advocate Generals, assisted by A.K Sand, AGA have submitted that the State itself has taken a decision to withdraw from prosecution and has granted permission to the Public Prosecutor to move an application under Section 321 CrPC and, therefore, the State is not opposing granting anticipatory bail to the accused-applicant.

Considering the stand of the complainant and the State, the Court finds it appropriate that the interim order dated 19.12.2022 be confirmed and thus, the accused-applicant is admitted on anticipatory bail, the Court observed.

The Court directed the accused-applicant to appear before the trial court concerned within one week and submit a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, if he has already not submitted in pursuance to the order dated 19.12.2022, and the concerned trial court shall release the accused-applicant on anticipatory bail application with any other conditions as it may deem fit in the facts and circumstances of the case.

With the above observation/direction, the Court disposed of the anticipatory bail application.

The Allahabad High Court has dismissed an anticipatory bail application saying that if an accused has already been arrested in police or judicial custody in another case and is lodged in jail, then his anticipatory bail application in the second registered case is not maintainable.

A Single Bench of Justice Samit Gopal passed this order while hearing a Criminal Misc anticipatory bail application filed by Rajesh Kumar Sharma.

The anticipatory bail application under Section 438 CrPC has been filed by the applicant Rajesh Kumar Sharma, seeking anticipatory bail, in the event of arrest in Special Case registered at Police Station CBI, New Delhi, under Sections 120B r/w 420, 467, 468, 471 IPC and Section 13(2) r/w 13(1) (d) Prevention of Corruption Act, 1988.

Counsel for the CBI raises a preliminary objection regarding maintainability of the anticipatory bail application under Section 438 CrPC by arguing that on the own showing of the applicant as per supplementary affidavit dated 11.10.2022, it is stated that the applicant has been arrested in September 2022 in Case under Sections 384, 420, 468, 471, 509 and 120B IPC, Police Station-Cyber Crime, Chandigarh, and as such the anticipatory bail application is not maintainable in view of the judgement rendered by the Rajasthan High Court in the case of Sunil Kallani vs State of Rajasthan decided on 25.10.2021, wherein while dealing with the issue as to whether an application of anticipatory bail under Section 438 CrPC is maintainable if the said accused is in jail in connection with another criminal case for the similar offences or for different offences, it has been held that the same would not be maintainable.

In reply, Counsel for the applicant argued that although the applicant is in jail in another case in Chandigarh, the same would not bar grant of anticipatory bail to him as he apprehends that he would be taken into custody in the case also.

The facts of the case are that a First Information Report was lodged on 29.6.2019 by Ms Beena Vaheed, Dy General Manager & Zonal Head, Corporation Bank, Delhi (North) as Case Police Station CBI/EO-I, New Delhi, under Sections 120B r/w 420, 467, 468, 471 IPC and substantive offences thereof, against nine persons.

The case related to fraud committed by M/s Naftogaz India Pvt Ltd in Noida-Mid Corporate Branch of the bank.

The matter was investigated and a charge sheet dated 31.12.2021 was filed against 16 persons.

On the said charge sheet cognizance was taken by the Special Judge (Prevention of Corruption) CBI, Ghaziabad order 17.2.2022 against the accused persons named therein and they were summoned to face trial. In so far as the accused no 15/Ramesha JS in the charge sheet is concerned, sanction for prosecution under Section 19 (1) (c) of Prevention of Corruption Act, 1988, was taken since he was a public servant and he was also summoned to face trial.

The Court observed that,

From perusal of the supplementary affidavit it is clear that the applicant has been arrested in a case in Chandigarh in September 2022 and is in jail.

The issue as to whether an application for anticipatory bail under Section 438 CrPC of an accused who has already been arrested, is maintainable or not came up in the case of Sunil Kallani (supra).

Analysing Section 46 CrPC read with Section 438 of CrPC, the Court held, “…the essential part of arrest is placing the corpus, body of the person in custody of the police authorities whether of a police station or before him or in a concerned jail. The natural corollary is therefore that a person who is already in custody cannot have reasons to believe that he shall be arrested as he stands already arrested. In view thereof, the precondition of bail application to be moved under Section 438 CrPC i.e “reasons to believe that he may be arrested” do not survive since a person is already arrested in another case and is in custody whether before the police or in jail.”

“The Court in view of the law laid down in the case of Sunil Kallani (supra) upholds the preliminary objection taken by the counsels for the CBI and holds that since the applicant is in custody in connection with another case, the anticipatory bail application under Section 438 CrPC would not lie and would not be maintainable”, the Court further observed while dismissing the anticipatory bail application.

Allahabad High Court has said that arrest should be made only if it is necessary for interrogation in police custody for investigation.  The court said that this should be the last option and unnecessary arrest is a violation of human rights.

A Single Bench of Justice Ajit Singh passed this order while hearing a Criminal Misc Anticipatory Bail Application under Sections 438 CrPC filed by Rahul Gandhi.

The anticipatory bail application has been filed on behalf of the applicant with a prayer to release him on anticipatory bail in Case under Sections 498-A, 323, 504, 406, 506 IPC read with Section 3/4 of Dowry Prohibition Act, 1961, Police Station Mahila Police Station, district Gautam Buddh Nagar, during pendency of investigation/trial.

The first information report of this incident was lodged by the complainant/victim herself against two named persons including the applicant.

It was alleged in the first information report that the marriage of the complainant was solemnized with the applicant on June 16, 2016.

It was also alleged that her parents had given sufficient dowry in the said marriage. It was also alleged that after marriage, the applicant and his family members have demanded Rs.1 crore as additional dowry.

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It was also alleged that applicant and his family members were continuously humiliating and torturing the complainant.

Counsel for the applicant submitted that the applicant is innocent and has falsely been implicated in the case. He further submitted that a first information report has been lodged with an object to injure the reputation of the applicant by having him so arrested.

He also submitted that no proceedings under Sections 82 and 83 CrPC have been initiated against the applicant.
Counsel for the applicant said that the charge sheet has not been filed till date. He submitted that the applicant undertakes to cooperate during the investigation and he will not tamper with the evidence in any way.

He submitted that Shashi Kiran Gandhi has been granted protection by another Bench of the Court order dated December 20, 2021, photocopy whereof supplied by counsel for the applicant has been perused by the Court, is taken on record and role assigned to applicant is similar to role of co-accused. He claims parity, the court noted.

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After considering the rival submissions, the Court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend them. After lodging an FIR, the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged.

The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are a gross violation of human rights.

The Court further held that,
In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief sources of corruption in the police.

The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made.

“Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicants, considering that accusation might have been lodged with the object of injuring the reputation of the applicant by having him so arrested, considering that aforesaid co-accused has been granted protection by another Bench of the Court order dated December 20, 2021, considering the judgment passed by Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and in the case of Satendra Kumar Antil vs. Central Bureau of Investigation passed in Special Leave to Appeal (Criminal). In the event of arrest, the applicant shall be released on anticipatory bail”,

-the court observed.

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The Court ordered that,
Let the applicant Rahul Gandhi involved in the crime be released on anticipatory bail on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the trial court/

Investigating Officer concerned with the following conditions:-

1.The applicant shall, at the time of execution of the bond, furnish his address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.

2. The applicant shall not leave the country during the currency of trial/ investigation by police without prior permission from the concerned trial Court.

3. The applicant shall not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the Investigating Officer of the police;

4. The applicant shall surrender their passport, if any, to the concerned Court/ Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passport, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.

5. 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;

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6. The applicant shall maintain law and order.

7. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.

8. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government

Advocate/informant/complainant can file bail cancellation application.

9. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 CrPC. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.