Anticipatory bail application dismissed on grounds that summons issued instead of arrest warrants. Applicants directed to apply before trial court for bail under Supreme Court guidelines within 20 days.
Applicants directed to move appropriate application before trial court for bail release within 20 days.
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Court No. - 69
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2572 of 2022
Applicant :- Shamsher Ali Opposite Party :- State Of U.P. And 5 Others Counsel for Applicant :- Rajesh Kumar Kanojia Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Rajesh Kumar Kanojia, learned counsel for the applicants as well as learned A.G.A. for the State and perused the record.
The present anticipatory bail application has been moved by the accused/applicants - Shamsher Ali, Waseem Ali, Shamshad Ali, Asif Ali, Naushad Ali and Kasim in Case Crime No.188 of 2020, under Sections 147, 148, 308, 323, 452, 504, 506 I.P.C, Police Station Jani, District Meerut, with the prayer to grant them anticipatory bail as they are apprehending arrest in the above-mentioned case.
Learned counsel for the applicants submits that the applicants have falsely been implicated in this case and they have not committed any offence as claimed by the prosecution.
It is also submitted that during the course of investigation the applicants were not arrested by the Investigating Officer as the charged offences against the applicants were punishable with punishment up to 7 years imprisonment. However, since the charge sheet has been filed and the court concerned has also taken cognizance and the coercive process have also been issued there is every apprehension in future that the applicants could be arrested in compliance of the coercive process issued by the trial court.
Learned counsel for the applicants further submits that the applicants are not having any criminal history and they are law abiding citizens and they are ready to cooperate in the trial, thus the protection from arrest in the above mentioned case be granted.
Learned A.G.A. on the other hand submits that charged offences against the applicants are punishable with up to 7 years imprisonment and only summons have been issued by the trial court and therefore there is no apprehension to them being arrested and the anticipatory bail application is thus not
maintainable.
Having heard learned counsel for the parties and having perused the record, the grievance of the applicants appears to be that though they have not been arrested during the course of investigation as the offences under which charge sheet has been filed against the applicants are punishable up to 7 years punishment but in compliance of the process issued by the trial court they may be arrested while they are ready to cooperated in the trial. The applicants are not having any criminal history as well.
The Hon'ble Supreme Curt in Satender Kumar Antill Vs. Central Bureau of Investigation and others : MANU/SC/1024/2021 has held as under:-
"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under:
"Categories/Types of Offences
A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.
B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.
D) Economic offences not covered by Special Acts. Requisite Conditions
1) Not arrested during investigation. 2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called. (No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615)
CATEGORY A
After filing of chargesheet/complaint taking of cognizance a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.
b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.
c) NBW on failure to failure to appear despite issuance of Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing. e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided. CATEGORY B/D
On appearance of the accused in Court pursuant to process issued bail application to be decided on merits."
CATEGORY C
Same as Category B & D with the additional condition of compliance of the provisions of Bail under NDPS S. 37, 45 PMLA, 212(6) Companies Act 43 d(5) of UAPA, POSCO etc.
4. Needless to say that the category A deals with both police cases and complaint cases.
5. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with.
6. We may also notice an aspect submitted by Mr. Luthra that while issuing notice to consider bail, the trial Court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest. On this aspect also we would give our imprimatur and naturally the bail application to be ultimately considered, would be guided by the statutory provisions."
Thus without entering into merits and demerits of the case the instant anticipatory bail application moved on behalf of the applicants is disposed of in terms that the applicants may move an appropriate application before the trial court for releasing them on bail and if such application is moved within 20 days from today the trial court shall pass appropriate order in the light of the law laid down by the Hon'ble Supreme Court in
Satender Kumar Antill (supra).
Order Date :- 5.4.2022 Muk
Digitally signed by MOHD UMAR KHAN Date: 2022.04.06 10:03:35 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether anticipatory bail can be granted where offences are punishable up to 7 years and summons have been issued instead of arrest warrants.
Whether applicants qualifying under Category A guidelines in Satender Kumar Antill are entitled to release on bail from trial court.
Colour shows how this judgement treated each authority
Satender Kumar Antill Vs. CBIRelied on¶13
Satender Kumar Antill Vs. Central Bureau of Investigation and others : MANU/SC/1024/2021
1 provisions across 1 enactments
Shamsher Ali and others
State of U.P.
Mohd. Faiz Alam Khan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
