Court granted anticipatory bail to Smt. Adesh in a cheating case involving non-execution of sale deed. Bail subject to refund of Rs. 13 lakhs and personal bond conditions including surrender of passport and restrained from inducing witnesses.
Anticipatory bail granted subject to refund of Rs. 13 lakhs within two weeks and personal bond with two sureties.
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Court No. - 85
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3124 of 2023
Applicant :- Smt. Adesh Opposite Party :- State of U.P. Counsel for Applicant :- Anurag Shrivastava,Pavan Kumar Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicant and learned A.G.A for the State.
The instant anticipatory bail application has been filed on behalf of the applicant, Smt. Adesh, with a prayer to release her on bail in Case Crime No. 761 of 2022, under Sections- 420, 406, 504, 506 IPC, Police Station- Kotwali City, District- Bijnor.
There is allegation against the applicant that he has taken Rs. 13 lakhs on the promise of executing sale deed in favour of the informant but he has not executed the sale deed.
Counsel for the applicant states that he will return the aforesaid amount of Rs. 13 lakhs and the remaining amount, if any shall be decided by the Civil Court in the suit which is pending between the parties. The applicant has been falsely implicated in this case. She has no criminal history to her credit. The applicant has definite apprehension that she may be arrested by the police any time.
Counsel for the informant has vehemently opposed the bail application of the applicant and has submitted that subsequently the applicant has sold the property to third party.
Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, she is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear anticipatory bail cannot be granted.
After considering the rival submissions this court finds that there is a case registered/about to be registered against the applicant. It cannot be definitely said when the police may apprehend her. After the lodging of 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 her custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. 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 source 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 rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar 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 applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 subject to the applicant returning the amount of Rs. 13 lakhs by way of R.T.G.S to the informant within period of two weeks, in case of her arrest, applicant shall be enlarged on anticipatory bail. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant involved in the aforesaid crime be released on anticipatory bail till the conclusion of trial on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
facts of the case so as to dissuade her from disclosing such facts to the Court or to any police officer;
In default of any of the conditions, the Investigating Officer/Govt. Advocate/concerned court is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
The payment made by the applicant to the informant shall be without prejudice to her rights before the trial Court in Civil and Criminal litigation both.
Order Date :- 6.4.2023 Rohit
Digitally signed by :- ROHIT DAS High Court of Judicature at Allahabad
3 issues framed by the court
Whether anticipatory bail is maintainable when apprehension of arrest exists in a case concerning false cheques or undue duress.
Whether conditions such as refund of amount within two weeks can be imposed to grant anticipatory bail.
Whether the provisions of Section 438 Cr.P.C. apply to women accused of non-bailable offences with antecedent conditions.
Colour shows how this judgement treated each authority
Joginder Kumar v. State of Uttar PradeshExplained¶12
Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349 · Who else cites this
Sushila Aggarwal vs. State (NCT of Delhi)Relied on¶13
Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 · Who else cites this
1 provisions across 1 enactments
Smt. Adesh
State of U.P.
Siddharth
As recorded by the court registry
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