The Allahabad High Court has dismissed the petition challenging the order passed by the Special Judge in a case registered under section 120-B and Section 7, 8, 9, 10 & 12 P.C Act, 1988.

The Division Bench of Justice Anjani Kumar Mishra and Justice Vivek Kumar Singh passed this order while hearing a Habeas Corpus Petition filed by Ramit Lala And 3 Others.

The Habeas Corpus Petition seeks the following reliefs:-

“i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 26.06.2023 passed by Special Judge, P.C Act (C.B.I, Ghaziabad) in Criminal Misc Case u/s 120-B and Section 7, 8, 9, 10 & 12 P.C Act, 1988 (As amended in 2018), P.S CBI/AC-I/New Delhi.

ii) Issue a writ, order or direction in the nature of Habeas Corpus directing the respondent concerned to release the petitioners from custody and produce before the Court on the date fixed.”

The facts of the case are that the petitioners were arrested on 25.04.2023 in connection with Sections 120B IPC and Sections 7, 8, 9, 10 & 12 of the Prevention of Corruption Act, 1988, P.S CBI/AC-I/New Delhi.

It is submitted that the charge-sheet was filed on 22.06.2023 and thereafter, the case was registered as a miscellaneous case and 26.06.2023 was fixed for hearing on the question of cognizance. On the next date i.e, 26.06.2023, the impugned order was passed. The court did not take cognizance on that date since requisite sanction for prosecuting Ramit Lala, a General Manager of Broadcast Engineering Consultants India Pvt Ltd, had not been obtained. The next date fixed was 10.07.2023. Simultaneously, the petitioners were remanded to judicial custody under Section 309 CrPC.

It is contended that the power under Section 309 Cr.P.C, can be invoked by a Court only after cognizance had been taken and not before that. Under the circumstances, remanding the petitioners to judicial custody is illegal and renders custody of the petitioner illegal.

The petitioners in the petition are Managing Director, President & Business Head and Director respectively of M/s Fusion Corporate Solutions Pvt Ltd.

The contention of Gyan Prakash, ASGI, appearing for respondents is two fold. He has submitted that upon perusal of the charge-sheet itself, it is clear that the investigation is still not complete.

He has next submitted that the remand order is one under Section 167(2) of the Act as it has been passed when the investigation is still not complete.

He further submitted that in any case mere mention of Section 309 I.P.C, would not render the order non-est because the Magistrate did possess the power to order judicial remand under Section 167.

The Court said that there is no doubt that Section 309 Cr.P.C cannot be invoked by a Magistrate or the Special Judge as in the instant case, at the pre-cognizance stage. The power under this Section can be exercised only after the Court has taken cognizance. It is not in dispute that cognizance has not been taken as requisite sanction for prosecution for some of the accused had not been obtained.

The Court noted that,

Under the circumstances, the only provision which permits an accused to be remanded to judicial custody is Section 167(2) of the Criminal Procedure Code.

The first proviso to the said Section namely a (ii) provides that the total period of remand of an accused cannot be more than 60 or 90 days depending upon the offence An accused who has completed 60/90 days in custody as per the offence under investigation shall be released on bail if investigation has not been concluded and if he is prepared and does furnish bail.

From a bare reading of proviso a(ii) of Section 167 sub-section 2, it is clear that on the expiry of 60 days of judicial and police remand an accused is entitled to default bail. This entitlement is subject to a prayer and readiness of the accused to furnish bail and such bail should be actually furnished.

In the case at hand, on a pointed query by the Court, Gopal Chaturvedi has stated that no such prayer was made on 26.06.2023 seeking bail when the order of remand was passed nor has it been stated in the petition or submitted by the counsel for the petitioner that bail was actually furnished.

“Under the circumstances, therefore, the order of remand cannot be said to be illegal. For the same reason and since the remand order dated 26.06.2023 was not per se illegal in the absence of a prayer for default bail and in the absence of any bail bond, security etc, having been furnished. Moreover, the charge-sheet had already been filed and therefore, the question of granting default bail did not arise even if cognizance had not been taken.

Therefore, the order of judicial remand passed on 26.06.2023 cannot be said to be illegal in any manner despite mention of section 309 Cr.P.C in the order of remand dated 26.06.2023, in view of the pronouncement of the Supreme Court in Pradeep Ram (Supra).

Since the petitioners have been remanded to judicial custody by a legal order, such detention is not illegal. Therefore, no habeas corpus will lie. The petition, insofar as it claims issuance of a writ of habeas corpus is not maintainable

Since a charge-sheet had been filed against the petitioners on 22.06.2023, they were not entitled to default bail. Their judicial remand by the order dated 26.06.2023 is fully justified. The order, therefore, is not liable to be quashed”, the Court observed while dismissing the petition.

The Allahabad High Court has stayed the arrest of Randheer Patel, a resident of Jaunpur and his mother, accused of raping a girl, and has sought a response from the state government within two weeks on the petition.

The Division Bench of Justice Anjani Kumar Mishra Justice Vivek Kumar Singh passed this order while hearing a petition filed by Randheer Patel And Another.

The writ petition seeks quashing of the F.I.R dated 29.6.2023 giving rise to Case under Sections 376, 504, 506 I.P.C and under Section 3(2)(v) of Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment 2015), Police Station- Georgetown, District- Prayagraj.

The contention of the counsel for the petitioner is that the first information report itself alleges that the petitioner no 1 had married the victim/daughter of the first informant and for these reasons no offence under Section 376 I.P.C can be alleged.

The Court observed that the matter requires consideration.

The Court granted two weeks time to file counter affidavit for the respondents and two weeks time to file Rejoinder affidavit for the petitioner counsel.

“Till the next date of listing, the petitioner may not be arrested consequent to the impugned F.I.R dated 29.6.2023 giving rise to Case under Sections 376, 504, 506 I.P.C and under Section 3(2)(v) of Schedule Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Amendment 2015), Police Station- Georgetown, District- Prayagraj.

This protection shall be available either till the next listing or till submission of police report under Section 173(2) Cr.P.C, whichever is earlier. It is also provided that the petitioner shall fully cooperate in the investigation, failing which they shall not be entitled to the benefit of this order”, the Court ordered.

The Allahabad High Court has granted conditional bail to accused of raping a girl on the pretext of marriage.

A Single Bench of Justice Vivek Kumar Singh passed this order while hearing a criminal misc bail application filed by Vishwanath Pandey.

It has been contended by the counsel for the applicant that the applicant has been falsely implicated in the case due to ulterior motives.

It is further contended that applicant is aged about 70 years and as per the allegation made by the victim in her statement recorded under Section 164 Cr.P.C, applicant has made physical relation with her on the promise of marriage.

It is further contended that there are material contradictions in the statements of the victim recorded under Section 161 as well as 164 Cr.P.C.

It is further contended that there is no reliable and cogent evidence against the applicant.

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It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required.

It has also been submitted that the applicant is languishing in jail since 20.12.2021. It has been pointed out that the applicant has no criminal history.

“Having heard the submissions of the counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v State of U.P and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail”

-the Court observed.

The Court ordered that,

Let the applicant Vishwanath Pandey involved in Case under Section 376 I.P.C, Police Station Kotwali, District Varanasi be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions.

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when 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.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) 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 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.

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The Allahabad High Court has granted anticipatory bail to Ashish Kumar Singh, an Assistant Teacher accused of getting a job with a fake marksheet.

A Single-Judge Bench of Justice Vivek Kumar Singh passed this order, while hearing a Criminal Miscellaneous Anticipatory bail application under Section 438 CrPC filed by Singh.

It was submitted on behalf of the applicant that he was innocent and the FIR has been lodged on false and frivolous facts on the basis of general allegation and no specific role has been assigned to the applicant, nor it has been specified as to in what manner the applicant got his mark sheet forged.

Such type of allegation made in the report of SIT that there were more than 3500 fake mark sheets and about 1000 tampered mark sheets, cannot be the basis of lodging an FIR against the applicant.

The applicant has completed his service as Assistant Teacher for more than a decade.

It is next contended that the ingredients of offences were absent and the entire prosecution story was based on false and frivolous allegations.

It was also submitted that several similarly situated persons have been granted anticipatory bail by different Benches of the Court.

The applicant has not committed any offence as alleged. Police have not submitted a charge sheet in the case and the applicant has definite apprehension of his arrest by the police.

It was further submitted that there was no possibility of the applicant either fleeing away from the judicial process, or tampering with the witnesses.

Lastly, it was submitted that the applicant has no previous criminal antecedent to his credit.

The Additional Government Advocate opposed the prayer for anticipatory bail. He did not dispute the fact that several similarly situated persons have been granted anticipatory bail.

“Without expressing any opinion on the merits of the case, considering the nature of accusation and the fact that the applicant has no criminal antecedent, he is entitled to be released on anticipatory bail in the case,” the Court observed.

The Court ordered that in the event of arrest of Ashish Singh, who is involved in case under Sections 409, 420, 467, 468, 471 IPC, at police station Madnapur, District Shahjahanpur, shall be released on anticipatory bail till the submission of police report, under Section 173 (2) CrPC, before the competent court, on his furnishing a personal bond of Rs 25,000, with two sureties each in the like amount to the satisfaction of the 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 officer;

(iii) the applicant shall not leave India without the previous permission of the Court and if he has a passport, the same shall be deposited by him/her before the SSP/SP Concerned.

In default of any of the conditions, the Investigating Officer is at liberty to file an appropriate application for cancellation of anticipatory bail granted to the applicant.

The Investigating Officer is directed to conclude the investigation of the case in accordance with law expeditiously, preferably within a period of three months from the date of production of a certified copy of the order independently without being prejudice by any observation made by the Court, while considering and deciding the anticipatory bail application of the applicant.

The Allahabad High Court has directed the release of a man and his wife, who are accused of the assault and rape of their brother’s daughter-in-law, on anticipatory bail.

A single-judge bench of Justice Vivek Kumar Singh passed this order while hearing a Criminal Misc Anticipatory Bail Application under section 438 CrPc filed by Ajay Pandey And Another.

It is submitted on behalf of the applicant that applicants are innocent and the FIR has been lodged on false and frivolous facts with malicious intention.

The applicants are cousin father-in-law and mother-in-law respectively of the victim. There is inordinate delay in lodging of the FIR without any plausible explanation. There is no independent, impartial reliable witness of the alleged incident.

The counsel for the applicants further submitted that a compromise has taken place between the informant/private respondent in which the informant has denied all the allegations leveled against the applicants in the case.

The counsel submitted that the ingredients of offences are absent and the entire prosecution story is based on false and frivolous allegations. The applicants have not committed any offence as alleged. The police have not submitted a charge sheet in the case and applicant has definite apprehension of his arrest by the police.

The counsel for the applicants said the applicants have no previous criminal history and there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses.

Counsel for the applicants further said that there is no possibility of the applicants fleeing away from the judicial process or tampering with witnesses.

The Additional Government Advocate opposed the prayer for anticipatory bail.

The Court observed that, without expressing any opinion on the merits of the case, considering the nature of accusation and the fact that applicant has no criminal antecedent, the applicant is entitled to be released on anticipatory bail in the case.

The Court ordered that,

In the event of arrest of the applicants- Ajay Pandey and Uma Pandey, who are involved in Case under Sections- 323, 504, 506, 376 IPC, Police Station- Daraganj, District- Prayagraj, shall be released on anticipatory bail till the submission of police report, if any, under section 173 (2) CrPC before the competent Court on their furnishing a personal bond of Rs 25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions:-

(i) the applicants shall make themselves available for interrogation by a police office as and when required;

(ii) the applicants 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 officer;

(iii) the applicants shall not leave India without the previous permission of the Court and if he has a passport the same shall be deposited by him/her before the SSP/SP Concerned.

 In default of any of the conditions, the Investigating Officer is at liberty to file an appropriate application for cancellation of anticipatory bail granted to the applicants.

The Allahabad High Court has granted bail to Manoj alias Payal Kinnar, accused of causing grievous hurt with a sharp weapon and feeding poisonous substances.

A Single-Judge Bench of Justice Vivek Kumar Singh passed this order on Monday, while hearing a Criminal Miscellaneous Bail Application filed by the Eunuch.

This is the second bail plea on behalf of the applicant. The first bail application was rejected by the Bench on February 1, 2021. It has been contended by the Counsel for the applicant that the applicant has been falsely implicated in the case due to ulterior motives.

It is next contended that the victim in his statement u/s 164 Cr.P.C. has not mentioned the name of the prime accused/applicant. He states that the applicant was not present at the date and time of incident. He denied the role of the applicant to such effect that he does not remember who has committed the alleged offence, but it is made sure that the main accused/applicant has no role in the incident.

It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since July 19, 2019. It has been pointed out that the applicant has no criminal history.

The Additional Government Advocate vehemently opposed the prayer.

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The Court held that the Courts have taken notice of the overcrowding of jails during the current pandemic situation. These circumstances shall also be factored in while considering bail applications on behalf of accused persons.

“Having heard the submissions of Counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh vs State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail,”

-the Court observed.

The Court ordered that let the applicant be released on bail in case under Sections 326 and 328 of IPC, registered at Police Station Civil Lines, District Moradabad, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

1. The applicant will attend and co-operate the trial proceedings pending before the court concerned on the date fixed after release.

2. He will not tamper with the witnesses.

3. He will not indulge in any illegal activities during the bail period.

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“The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail”, the order reads.