Dismissed¶22

Arvind Kumar and Another v. State of U.P. and Another

Allahabad HC23 Jan 2023ABAIL/308/2020

Case brief

AI extract

What is this about?

Allahabad High Court (Manju Rani Chauhan, J.), CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. 308 of 2020, decided 23.1.2023: anticipatory bail refused in Case Crime No. 0532 of 2019, Sections 2, 3 PDPP Act 1984, P.S. Khutar, Shahjahanpur; interim bail of 21.06.2021 obtained by suppressing criminal history of two cases and false affidavit; clean-hands doctrine applied; charge sheet already submitted; no case under S.438 Cr.P.C. made out; application rejected.

What did the court decide?

A person whose case is based on falsehood has no right to approach the court and can be summarily thrown out at any stage of the litigation; the judicial process cannot become an instrument of oppression or abuse. ¶13

Arvind Kumar and Another Vs State of U.P. and Another — Anticipatory Bail | Allahabad HC (2023)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the applicants are entitled to anticipatory bail under Section 438 Cr.P.C. in Case Crime No. 0532 of 2019 (Prevention of Damage to Public Property Act, 1984, P.S. Khutar, District Shahjahanpur). +1 more

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Court's answer

On the facts, the role assigned to the applicants, the gravity and nature of the accusation and the reasons recorded, no case was made out for exercising the discretionary power under Section 438 Cr.P.C. in favour of the applicants, and the application was rejected.

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Ratio / Principle

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Key takeaways

The applicants suppressed their criminal history of two cases and obtained the interim anticipatory bail order by concealing their credentials and giving a false affidavit that they had no previous criminal history.ratio¶11
Since the applicants did not approach the Court with clean hands and filed the application suppressing material facts, they do not deserve any indulgence by the Court.ratio¶12
The object of Section 438 Cr.P.C. is that a person should not be unnecessarily harassed or humiliated; the discretionary power to grant or refuse anticipatory bail must be exercised carefully, with circumspection, weighing factors such as nature and gravity of accusation, role attributed, conduct, criminal antecedents, flight risk, tampering apprehension and societal impact, balancing individual liberty against the interest of society.

Detailed headnote1 paragraphs

Anticipatory bail application under Section 438 Cr.P.C. by Arvind Kumar and another in Case Crime No. 0532 of 2019 (Sections 2, 3, Prevention of Damage to Public Property Act, 1984, P.S. Khutar, District Shahjahanpur) rejected. Interim anticipatory bail granted on 21.06.2021 had been obtained by concealing a criminal history of two cases and furnishing a false affidavit of no antecedents; the applicants had not approached the Court with clean hands and were held undeserving of indulgence. Reiterating that a litigant whose case is founded on falsehood may be summarily thrown out at any stage, and that grant of anticipatory bail may hamper custodial interrogation (relying on P. Chidambaram and Sadhna Chaudhary, with the Anil Sharma passage reproduced), the Court held that no case for exercising its discretionary power under Section 438 Cr.P.C. was made out and rejected the application on 23.1.2023.

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Court No. - 77

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 308 of 2020

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Applicant :- Arvind Kumar And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Atharva Dixit,Aushim Luthra Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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List revised. No one has appeared on behalf of the applicants to press this application.

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Mr. Rakesh Soni, learned counsel for the State is present.

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The present application has been moved seeking anticipatory bail in Case Crime No. 0532 of 2019, under Sections 2, 3 Prevention of Damage to Public Property Act, 1984, P.S. Khutar, District-Shahjahanpur , with the prayer that in the event of arrest, applicants may be released on bail.

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Perusal of the order sheet goes to show that earlier on 21.06.2021, an interim anticipatory bail was granted to the applicants.

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Learned AGA for the State, on the basis of instructions, submits that from the material as collected by the Investigating Officer, credible, clinching as well as documentary evidences showing the complicity of commission of the crime has been found, therefore, the charge sheet has been submitted against the applicants. He has further submitted that in view of the seriousness of the allegations made against the applicants, they are not entitled to grant of anticipatory bail. He has pointed out that the applicant has approached before this Court directly without availing remedy to approach before the court below. A Full Bench of this Court in the case of Ankit Bharti and others v. State of U.P. and another, 2020 (3) ADJ 575 (FB), has clearly held that special circumstances must necessarily exist and be established, and the application must rest on a strong foundation to invoke concurrent jurisdiction of this Court directly; without rejection by the court below. Learned AGA also pointed out that the applicant has criminal history of two cases, however, in para 26, it has been stated that the applicants have no criminal antecedents to their credit prior to the present case.

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The applicants have suppressed the criminal history of two

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cases and have obtained the interim order by concealing their credentials and giving false affidavit that they have no previous criminal history.

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As the applicants have not approached this Court with clean hand and filed this application suppressing the material facts in sheer disobedience of the orders of Supreme Court as well as this Court. Therefore, they do not deserve any indulgence by this Court.

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The courts of law are meant for imparting justice between the parties. One, who comes to the court, must come with clean hands and no material facts should be concealed. I am constrained to hold that more often the process of the court is being abused by unscrupulous litigants to achieve their nefarious design. I have no hesitation in saying that a person, whose case is based on falsehood, has no right to approach the court. He/she can be summarily thrown out at any stage of the litigation. The judicial process cannot become an instrument of oppression or abuse or a means in the process of the Court to subvert justice, for the reason that the Court exercises its jurisdiction, only in furtherance of justice.

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Object of section 438 of the Code of Criminal Procedure, is that a person should not be unnecessarily harassed or humiliated in order to satisfy personal vendetta or grudge of complainant or any other person operating the things directly or from behind the curtains. It is well settled that discretionary power conferred by the legislature on this court can-not be put in a straitjacket formula, but such discretionary power either grant or refusal of anticipatory bail has to be exercised carefully in appropriate cases with circumspection on the basis of the available material after evaluating the facts of the particular case and considering other relevant factors (nature and gravity of accusation, role attributed to accused, conduct of accused, criminal antecedents, possibility of the applicant to flee from Justice , apprehension of tampering of the witnesses or threat to the complainant, impact of grant of anticipatory bail in investigation, trial or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.

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Grant of anticipatory bail may hamper the custodial interrogation and will lead to nondisclosure of useful information and material facts and information. In the case of P. Chidambaram vs. Directorate of Enforcement, reported in (2019) 9 SCC 24 , the Apex Court held as under:-

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"74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in

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which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:-

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"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."

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81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. ........."

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In another judgment of Apex Court in case of Sadhna Chaudhary Vs. State of Rajasthan & Anr., reported in 2022 (237) AIC 205 (SC) , the Apex Court has held that while dealing with an application for anticipatory bail, the High Court must consider the nature and gravity of the accusation, the exact role of the accused and apprehension of the arrest etc.

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In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties, taking into consideration the role assigned to the applicant as per prosecution case, gravity and nature of accusation as well as reasons mentioned above, this court is of the view that no case for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of applicant.

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Accordingly this application under section 438 Cr.P.C. is rejected .

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Order Date :- 23.1.2023 Jitendra/-

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Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad

Arvind Kumar and Another v. State of U.P. and Another

Case brief

What is this about?

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Arvind Kumar and Another v. State of U.P. and Another

Case brief

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