Allowed

Beena Rai v. State of U.P. and Another

Allahabad HC3 Jul 2024ABAIL/6279/2024

Case brief

AI extract

What is this about?

The applicant sought anticipatory bail in a criminal case involving allegations of cheating and breach of trust regarding construction flats. The State opposed the application citing the issuance of a process under Section 82 Cr.P.C. The Court held that in exceptional circumstances where process is issued during pendency, anticipatory bail is maintainable. The Court granted anticipatory bail till

What did the court decide?

Anticipatory bail granted till filing of police report under Section 173(2) Cr.P.C. on furnishing personal bond of Rs.50,000/with two sureties.

Beena Rai vs State of U.P. and Another — Property and Title | Allahabad HC (2024)

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Court No. - 86

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6279 of 2024 Applicant :- Beena Rai Opposite Party :- State of U.P. and Another Counsel for Applicant :- Satyendra Kumar Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. Supplementary affidavit filed today is taken on record.

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This application has been moved on behalf of the applicant - Beena Rai seeking anticipatory bail in Case Crime No.4 of 2023, under Sections 406, 419, 420, 467, 468, 471, 504, 506 IPC, Police Station Manduadeeh, District Varanasi.

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It is alleged in the FIR that one registered Developers agreement dated 31.5.2014 took place between the builders co-accused - Beena Rai and Avinash Upadhyay on the one hand and the owners of the land - the present accused applicant on the other hand and under the aforesaid agreement, the construction of multi-storey building started. Some persons including the informant entered into an agreement with the builders for the purchase of some flats in the aforesaid multi-storey building. It is further alleged that in pursuance of the aforesaid agreement, a huge amount was paid to the builders by both the informants. It is further alleged that the builders and the owners, who is the present accused applicant before the court, are in collusion with each other and the possession of the flats has not been delivered to the informant.

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It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Investigation is going on in the matter. It is submitted by the learned council for the applicant that he is simply the owners of the land and this is the liability of the builder to receive money from the investors and also to give possession of the constructed flats to them. The owners have nothing to do with that. No money has been transferred in favour of the applicant by the informants of the case. It is further submitted that the investigation into the matter is going on. It is further submitted that earlier the accused applicant was an employee in the Builder company where from

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she was resigned on 21.12.2020 and since then she had nothing to do with the Pratakshya Infra Developers Private Ltd. It is further submitted that although process under Section 82 Cr.P.C. and nonbailable warrant has been issued against the accused applicant but as a matter of fact the said process was issued against her by the address of district Varanasi whereas since 2019 she is residing at Sector-6, Gomti Nagar Extention, Lucknow and she had absolutely no knowledge about the FIR of this case or any of the process issued by the Court against her. She is a house wife and in the compelling circumstances she had approached this Court for anticipatory bail. In case applicant is granted anticipatory bail, she will not misuse the liberty of bail and would obey all conditions of bail.

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Learned A.G.A. opposed the prayer for anticipatory bail. It is submitted that a process under Section 82 Cr.P.C. has been issued against the accused applicant and anticipatory bail application as such is not maintainable.

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In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

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In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676 , the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then

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there is no compulsion on the officer to arrest the accused.

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Considering the submissions made by learned counsel for the applicant and also taking into account that the punitive process was issued against the applicant by the court concerned during the pendency of the anticipatory bail application before this Court, in my view, an exceptional case exists in favour of the applicant for consideration of application for anticipatory bail moved by her. Hence the present application is well maintainable before this Court as a rare and exceptional case in the light of the law laid down by the Hon'ble Apex Court in State of Haryana vs. Dharamraj, 2023 SCC Online SC 1085 , decided on 29.8.2023.

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In the facts and circumstances of the case, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till filing of police report under Section 173(2) Cr.P.C. before the competent Court.

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10. The application is allowed accordingly.

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In the event of arrest of the applicant, she shall be released on anticipatory bail on her furnishing a personal bond of Rs.50,000/with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

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(i) The applicant shall make herself available for interrogation by a police officer as and when required.

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(ii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police office.

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(iii) The applicant shall not leave India without the previous permission of the Court and if she has passport, the same shall be deposited by her before the S.S.P./S.P. Concerned.

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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 interim protection granted to the applicant.

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Order Date :- 22.8.2024//Fhd

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Digitally signed by :- FAHAD NIYAZ High Court of Judicature at Allahabad

Beena Rai v. State of U.P. and Another

Case brief

What is this about?

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Beena Rai v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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