Dismissed

Madhau Singh v. State of Up

Allahabad HC2 Feb 2023ABAIL/5311/2020

Case brief

AI extract

What is this about?

The Single Judge of the Allahabad High Court rejected an application for anticipatory bail under Section 438 Cr.P.C. The rejection was based on the applicant's concealment of material facts regarding his criminal history and failure to approach the court with clean hands, which rendered the judicial process abusive.

What did the court decide?

Application for anticipatory bail under Section 438 Cr.P.C. rejected; interim order vacated.

Madhau Singh Vs State of Up — Anticipatory Bail | Allahabad HC (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. - 5311 of 2020

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Applicant :- Madhau Singh Opposite Party :- State of U.P. Counsel for Applicant :- Nitin Chandra Mishra Counsel for Opposite Party :- A.G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Mr. Abhishek Kumar Kushwaha, Advocate holding brief of Mr. Nitin Chandra Mishra, learned counsel for the applicant request to adjourn the matter for today.

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Heard Mr. Amit Singh Chauhan, learned AGA for the State and perused on record.

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The present application has been moved seeking anticipatory bail in Case Crime No. 28 of 2020, under Sections 272, 420 IPC and 60 Excise Act, P.S. Onchha, District-Mainpuri , 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 02.09.2020, the interim protection was granted to the applicant. Thereafter, on 22.09.2022, the following order was passed:-

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" As a last opportunity, two weeks' time is granted to the learned A.G.A. for filing counter affidavit. Rejoinder affidavit, if any, may be filed within a week thereafter.

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List on 06.12.2022 in the additional cause list.

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Interim order, if any, to continue till the next date of listing."

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Subsequently, on 06.12.2022, the following order was passed:-

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" As a last opportunity, a week's further time is granted to learned AGA to file counter affidavit.

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One week time, thereafter, is granted to the learned counsel for the applicant to file rejoinder affidavit.

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Place this application on 17.1.2023 in the additional cause list.

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Till the next date of listing, interim order, if any, shall continue."

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Subsequently, on 17.01.2023, the following order was passed:-

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"Learned counsel for applicant prays for and is granted two weeks' and

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no more time to file rejoinder affidavit .

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List on 2nd February, 2023.

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Interim order, if any, is extended till the next date of listing."

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The aforesaid orders shows that the matter has been adjourned for one or the other reason since 08.09.2020.

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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 in this case on 25.09.2020. He has further submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. Learned AGA has placed DCRB report, which shows that the applicant has criminal history of one case, however, in para 14, it has been stated that the applicant has never been prosecuted for any criminal case, except the present case and he has no criminal history. Copy of DCRB report passed on to the Court today, is taken on record.

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From the records, it is clear that vague and false contents regarding criminal history of the applicants has been averred in paragraph 14 of the affidavit filed in support of anticipatory bail application as also no supplementary affidavit has yet been filed in that regard even after the time been granted by this Court. Such conduct of the applicant conspicuously reflects concealment and non-disclosure of the facts.

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As the applicant has 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, he does 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 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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Interim order, if any, stands vacated.

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Order Date :- 2.2.2023 Jitendra/-

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

Madhau Singh v. State of Up

Case brief

What is this about?

What did the court decide?

Madhau Singh v. State of Up

Case brief

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