The High Court rejected an anticipatory bail application filed directly without approaching the lower court. The applicant, who was enjoying interim protection, failed to appear. The court held that the application was not maintainable and no case for exercising discretionary power was made out.
Application rejected; interim order discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 77
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8198 of 2021
Applicant :- Narendra Dev Pandey Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
List revised. No one has appeared on behalf of the applicant to press this application. Learned A.G.A for the State is present.
The present application has been moved seeking anticipatory bail in Case Crime No.0066 of 2021 under Sections 419, 420, 467, 468, 471 IPC, Police Station- Gola, District- Gorakhpur with the prayer that in the event of arrest, applicant may be released on bail.
Perusal of the record goes to show that interim protection was granted to the applicant vide order dated 6.4.2021 after which the matter has not been argued by learned Counsel for the applicant on several occasions.
The Court finds that the applicant is enjoying the interim protection as granted by the order dated 6.4.2021 passed by the Co-ordinate Bench of this Court. Non-appearance of the applicant in Court without "sufficient cause" cannot be excused and the same amounts to misuse of liberty as granted by the earlier order.
The resources of the Court which includes precious judicial time are scarce and already badly stretched. Valuable Court time, which is required to be engaged in adjudication of serious judicial action, is expended on frivolous and vexatious litigation which is misconceived and is an abuse of the process of law. A judicial system has barely sufficient resources to afford justice without unreasonable delay to those having genuine grievances. Therefore, increasingly, the Courts have held that such totally unjustified use of judicial time has to be curbed and the party so wasting precious judicial resources, must be required to compensate not only the adversary but also the judicial system.
Learned A.G.A. submits that charge sheet has been submitted in this case on 22.4.2022. 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. 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 A.G.A. also points out that the applicants have approached this Court directly without approaching the concerned court below, therefore this anticipatory bail application is not maintainable. 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.
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.
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:-
"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 theinvestigation. 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:-
"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."
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. ........."
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.
From the record, it appears that there is no apprehension of arrest of the applicant nor anything has been averred in the affidavit with regard to threat or apprehthey areension of arrest of the applicant.
In the light of above, looking to the facts and circumstances of this case, 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.
Accordingly this application under section 438 Cr.P.C. is rejected. Interim order, if any, stands discharged.
It is open to the Court/authority concerned to proceed in accordance with law.
It is clarified that observations made in this order at this stage is
limited for the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case. The investigating officer of this case shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials/ evidences on record.
Registrar (Compliance) is directed to communicate this order to the concerned Court/authority for necessary information and compliance.
Order Date :- 27.1.2023 S. Singh
Digitally signed by :- SAVITA SINGH High Court of Judicature at Allahabad
2 issues framed by the court
Whether anticipatory bail application under Section 438 Cr.P.C. is maintainable when the applicant enjoys interim protection but fails to appear without sufficient cause.
Whether the applicant has established sufficient cause or special circumstances to invoke the concurrent jurisdiction of the High Court directly without approaching the lower court below.
Colour shows how this judgement treated each authority
Ankit Bharti and others v. State of U.P. and anotherExplained¶12
Ankit Bharti and others v. State of U.P. and another, 2020 (3) ADJ 575 (FB)
P. Chidambaram vs. Directorate of EnforcementExplained¶14
P. Chidambaram vs. Directorate of Enforcement, reported in (2019) 9 SCC 24 · Who else cites this
State Rep. By The CBI v. Anil SharmaExplained¶15
State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187 · Who else cites this
Sadhna Chaudhary Vs. State of Rajasthan & Anr.Explained¶19
Sadhna Chaudhary Vs. State of Rajasthan & Anr., reported in 2022 (237) AIC 205 (SC)
1 provisions across 1 enactments
Narendra Dev Pandey
State of U.P.
Manju Rani Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
