Allowed

Kari Arshad Alias Arshad Mahmood Qasmi v. State of U.P.

Allahabad HC4 Jul 2024ABAIL/5239/2024

Case brief

AI extract

What is this about?

The High Court allowed an anticipatory bail application, holding that a bailable warrant issued without serving a summons violated the statutory procedure established by law under Article 21 of the Constitution, despite the applicant's criminal antecedents.

What did the court decide?

Anticipatory bail granted. Applicant shall furnish a personal bond of Rs. 25,000 with two sureties and adhere to conditions regarding non-interference, residence, and cooperation with investigation.

Kari Arshad Alias Arshad Mahmood Qasmi vs State of U.P. — Anticipatory Bail | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:152352

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5239 of 2024

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Applicant :- Kari Arshad Alias Arshad Mahmood Qasmi Opposite Party :- State of U.P. Counsel for Applicant :- Amit Rai Counsel for Opposite Party :- G.A.

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Hon'ble Vikram D. Chauhan,J.

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Heard learned counsel for the applicant as well as learned AGA and perused the material available on record.

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The present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Kari Arshad Alias Arshad Mahmood Qasm i in Case Crime No. 1138 of 2019 under Sections 147, 148, 149, 323, 452, 336, 427, 188, 109, 120B, 153A, 295A IPC, Section 7 Criminal Law Amendment Act and Section 3 of Prevention of Damage to Public Property Act, Police Station - Kotwali City, District - Bijnor.

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It is submitted by learned counsel for the applicant that applicant has not been served with the summons.

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3-A. It is submitted by learned counsel for the applicant that applicant was not named in the First Information Report and the FIR was lodged against 250-275 unknown persons. As per prosecution case in the First Information Report, it is alleged that large number of persons came to the establishment of the informant along with iron rod, stick, sword and bricks and started assaulting persons and damaged the shops and vehicles. The name of applicant has surfaced during investigation, however, there are no specific details in respect of the applicant. It is submitted by learned counsel for the applicant that the criminal history has been explained in para 19 of the affidavit. It is further submitted that offences against applicant are punishable upto 7 years and no summons were ever served on applicant and thereafter bailable warrant has been issued against applicant, which is in violation of the procedure established by law.

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3-B. It is submitted by learned counsel for applicant that applicant is innocent and has no concern with the present matter. Allegations

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levelled against the applicant is false. It is further argued that no prima facie case is made out against the applicant. If the applicant is enlarged on anticipatory bail, he will not misuse the liberty and cooperate with the investigation. The applicant has apprehension of his arrest by the police any time. It is further submitted that Article-21 of the Constitution of India is violated.

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Learned A.G.A. opposed the prayer but does not dispute the factual matrix.

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It is not shown by learned AGA that the offence in question will have impact on society at large. It is not shown that act causes harm to the society. The accusations arise out of dispute between individuals. It is not shown by learned AGA that the nature and gravity of allegations are such that the same would disentitle the applicant for relief of anticipatory bail. Learned AGA has not raised concern that any prejudice would be caused to free, fair and full investigation in the event the applicant is granted anticipatory bail. No material, facts, circumstances or concern been shown by learned AGA for the State that the accused may tamper with the evidence or witnesses or accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence.

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Learned AGA for the State has pointed out the criminal antecedents of the applicant. No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases.

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In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446 , the Apex Court in para 30 has observed:-

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"We may hasten to add that when we state that the accused is a historysheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked."

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In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648 , the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail.

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In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade

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the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent.

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This Court vide order dated 10.09.2024 passed in Criminal Misc. Anticipatory Bail Application No. 6396 of 2024 (Rahis Ahmad and another vs. State of U.P. and another) has observed as follows:

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"9. When a First information report is lodged, the investigating agency after investigation submits its report before the court concerned having jurisdiction. The court concerned after scrutinising the material, if it is of the opinion that sufficient grounds for proceeding against an accused exist, issues process against the accused by way of summon or warrant as the case may be. In the event, summoning order is passed by the court concerned against an accused person, a summon is to be issued as per section 61 (Section 63 of BNSS, 2023) of the Criminal Procedure Code, 1973 (for short 'Cr.P.C.). As per aforesaid section, every summons issued by a Court under the Code shall be in writing, in duplicate, signed by Presiding Officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court. In this respect section 61 of the Cr.P.C. is quoted herein below:-

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"61. Form of summons.—Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court."

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10. Further, Section 63 of BNSS, 2023 is quoted herein below :-

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"63. Form of summons.—Every summons issued by a Court under this Sanhita shall be,—

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(i) in writing, in duplicate, signed by the presiding officer of such Court or by such other officer as the High Court may, from time to time, by rule direct, and shall bear the seal of the Court; or

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(ii) in an encrypted or any other form of electronic communication and shall bear the image of the seal of the Court or digital signature."

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11. As per section 62 of the Cr.P.C. (Section 64 of BNSS, 2023), summons are required to be served by a police officer or subject to such rules as the state government may make in this behalf, by an officer of the court issuing it or other public servant. Section 62 of the Cr.P.C., is quoted herein below :-

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"62. Summons how served.—(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant.

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(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

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(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate."

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12. Further, Section 64 of BNSS, 2023 is quoted herein below :-

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"64. Summons how served.—(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the Court issuing it or other public servant:

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Provided that the police station or the registrar in the Court shall maintain a register to enter the address, email address, phone number and such other details as the State Government may, by rules, provide.

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(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons:

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Provided that summons bearing the image of Court's seal may also be served by electronic communication in such form and in such manner, as the State Government may, by rules, provide.

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(3) Every person on whom a summons is so served personally shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate."

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13. As per section 62 of Cr.P.C. (Section 64 of BNSS, 2023), summons are required to be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. The person on whom a summon is so served, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

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14. The law prescribes that once summoning order is passed, the court concerned is required to issue a summon (in writing) in pursuance to the summoning order, to the police officer for service on the accused person. It is to be noted that till the stage of summoning of an accused, normally the accused does not have any knowledge with regard to the process under criminal law being initiated against him by court concerned. It is the summons which when served on the accused, forms the basis of knowledge to the accused with regard to initiation of criminal proceedings against the accused person by court concerned.

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15. As per Section 64 of Cr.P.C. (Section 66 of BNSS, 2023), when the person summoned cannot, by exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a receipt therefor on the back of other duplicate. In respect of, service of a summon on a corporation, as per section 63 of the Cr.P.C. (Section 65(1) of BNSS, 2023), the same may be effected by serving it on the Secretary, local Manager or

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other Principal Officer of the Corporation, or by letter sent by registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed to have been effected when the letter would arrive in ordinary course of post.

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16. A Court under law is authorised to issue a warrant against an accused under section 87 of the Cr.P.C. (Section 90 of BNSS, 2023), where the accused person fails to appear and the summons is proved to have been duly served in time to admit his appearance in accordance therewith and no reasonable excuse is offered for such failure by accused. The provision of section 87 of the Cr.P.C. is quoted herein below :-

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"87. Issue of warrant in lieu of, or in addition to, summons.—A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—

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(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

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(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure."

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17. A perusal of the above-mentioned provision would demonstrate that the court concerned is authorised to issue warrant where the court has reason to believe that the accused has absconded or will not obey the summons or where the summons have been duly served in time, however, the accused has failed to appear before the court concerned in pursuance to the summons.

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18. For proceeding, against an accused for issuance of a warrant, it is imperative on the part of the court concerned to record a finding that summons have been served on the accused person and he has failed to appear before the court concerned without reasonable cause. The finding with regard to service of summons on accused can only be recorded by the court concerned when in pursuance to the summoning order, the court has actually issued summons to the police authorities for service. The issuance of a actual summons in pursuance to the summoning order is the procedure prescribed by law.

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19. Article 21 of the Constitution of India provides that no person shall be deprived of his life or liberty except in accordance with procedure established by law. Article 21 of Constitution of India is one of the fundamental rights provided under part-III of the Constitution of India. The right to life and liberty has an important role to play in the life of every individual. The object of the aforesaid provision is to prevent the deprivation of personal liberty of an individual except in accordance with law. It is necessary that before an individual is deprived of his personal liberty, the procedure established by law is followed and must not be departed from, to the disadvantage of accused person. The aforesaid fundamental right is available to every individual including an accused. It is settled law that the procedure established by law has to be "due procedure". The Supreme Court has read

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the principle of reasonableness into the said procedure prescribed by Article21, holding that it must be just and fair & not arbitrary.

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20. Article 21 of Constitution of India, has embedded in itself the principle of Rule of Law. It is fundamental right of an individual to be subjected to deprivation of personal liberty by procedure established by law. Whenever an individual is threatened or steps are taken, for deprivation of his personal liberty in violation of Article 21 of Constitution of India, such a procedure or steps would not be constitutionally permissible. It is further to be noted that Constitution is a "grand norm" and all the laws & procedures are subject to Article 21 of Constitution of India. It is, therefore, imperative that whenever personal liberty of individual is threatened or is being violated without following the procedure established by law, courts are required to take steps in furtherance of the mandate of Article 21 of Constitution of India. Personal liberty of an individual is required to be protected.

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21. It is further to be noted that provision of anticipatory bail is an extension to the fundamental right of an individual under Article 21 of the Constitution of India. The provision of anticipatory bail ensures that an individual is not subjected to arbitrary arrest and is subjected to deprivation of personal liberty only by established procedure of law. While exercising the jurisdiction of anticipatory bail, the courts are required to also examine, as to whether, the personal liberty of an individual is being proceeded to be curtailed as per the procedure established by law or an individual is being subjected to arbitrary arrest/without following the procedure established by law. The constitution being the grand norm, all laws and procedures are required to ensure that a right of an individual under Article 21 of the Constitution of India is not in any manner infringed. The state and all authorities (including court of law) are required to preserve the right of an individual under Article 21 of Constitution of India by following the procedure established.

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22. In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 , the Supreme Court has observed as under:-

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"56. The reason for enactment of Section 438 in the Code was parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. Section 438 is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence. As denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature. In Sibbia [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] , it was observed that : (SCC p. 589, para 35)

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"35.… Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely."

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57. The interpretation of Section 438 — that It does not encapsulate Article 21, is erroneous. This Court is of the opinion that the issue is not whether Section 438 is an intrinsic element of Article 21 : it is rather whether that provision is part of fair procedure. As to that, there can be no doubt that the provision for anticipatory bail is pro-liberty and enables one anticipating arrest, a facility of approaching the court for a direction that he or she not be arrested; it was specifically enacted as a measure of protection against arbitrary arrests and humiliation by the police, which Parliament itself recognised as a widespread malaise on the part of the police."

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In the order-sheet of the trial court there is no finding that summons were actually issued to the accused/applicant after passing of the summoning order nor there is any finding that summons were actually served on the accused/applicant. Once summons were not served on the accused/applicant, the nonbailable warrants could not have been issued in an mechanical manner. Non issuance of the summons affects the right of the accused/applicant to defend himself/herself by various legal remedies available to an accused by challenging the summoning order or filing an application under Section 88 Cr.P.C. or to prefer anticipatory bail application.

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11-A. The District Judge, Bijnor by report dated 16.9.2024 has reported that no summon has been issued to the applicant.

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The accused/applicant has been subjected to issuance of bailable warrant without service of summons which is not in accordance with the procedure established by law and as such the right of the accused/applicant under Article 21 of the Constitution of India is violated. In view of aforesaid, bailable warrant against applicant is issued without following procedure established by law.

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It is settled principle of law that the object of bail is to secure the attendance of the accused. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.

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In view of the above, the applicant is granted anticipatory bail in respect of offence described in para-2 of the present order. In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall not directly or indirectly, make any

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inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade themselves from disclosing such facts to the Court or to any police office.

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(ii) The applicant shall not leave India without the previous permission of the Court concerned.

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(iii) In the event, applicant changes residential address, the applicant shall inform the court concerned/Investigating Officer about new residential address in writing.

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(iv) The applicant shall cooperate with the investigation and make himself available for interrogation whenever required.

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(v) The applicant shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police.

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(vi) The applicant shall maintain law and order.

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(vii) The applicant shall at the time of execution of the bond, furnish his address and mobile number to investigating officer, and the court concerned.

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(viii) The applicant shall regularly remain present during the trial, and cooperate with the Court to complete the trial for the above offences.

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(ix) Non presence of the applicant or his counsel before the court concerned shall be construed as violation of the present order and the court concerned would be at liberty to take coercive measures in accordance with law.

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In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant.

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With the directions made above, the anticipatory bail application stands allowed .

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Order Date :- 19.9.2024

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D. Tamang

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Digitally signed by :- DHIRENDRA TAMANG High Court of Judicature at Allahabad

Kari Arshad Alias Arshad Mahmood Qasmi v. State of U.P.

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Kari Arshad Alias Arshad Mahmood Qasmi v. State of U.P.

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