Kamar Alam v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10775 of 2023 Applicant :- Kamar Alam Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mahendra Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant, learned AGA and perused the material available on record.

¶2This application has been moved on behalf of the applicant Kamar Alam seeking anticipatory bail in Case Crime No. 372 of 2019 under Sections 420, 406 IPC, Police Station Bhognipur, District-Kanpur Dehat.

¶3On the false pretext of profitable policy the accused induced the lady informant to invest huge amount of money in Kalpjeevan Agrao Farming Ltd. which is an insurance company. The informant also paid Rs.90,000/- to the present applicant for the purpose of securing 5 fixed deposits and in the same manner the other co-accused persons were also paid by the informant, however on maturity no amount was paid to the informant. FIR was lodged on 23.8.2019 and after investigation now the charge sheet has been submitted.

¶4It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of his arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. The investigation of the case has been completed and charge-sheet has been filed and cognizance has been taken by the Court concerned. It is further submitted that the present applicant has in no way concerned with the Kalpjeevan Agrao Farming Ltd. insurance company. It is further submitted that the informant never paid any money as insurance premium to the present applicant and there is no witness for the same. It is further submitted that the informant herself in her statement and her father-in-law Ram Autar in his statement under Section 161 Cr.P.C. has narrated nothing against the present applicant on the point as to how he is concerned with the insurance company. It is also submitted that the real brother-in-law of the informant is himself the agent of the insurance company and he has been a master mind of all the fraud. It is also submitted that during investigation notice under Section 41-A Cr.P.C. was given to the applicant by the I.O. of the case and he never misused the liberty of the same. It is further submitted that the criminal history of two cases has been explained in the affidavit. It has been submitted that in case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

¶5Learned A.G.A. opposed the prayer for anticipatory bail but however at this stage prima facie could not explain as to how the present applicant is concerned with the fraud of the insurance company.

¶6In the present matter the charge sheet has been submitted. No custodial interrogation seems to be required. Criminal history of the applicant has been explained.

¶6Although the charge sheet has been submitted in this matter but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

¶7It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

¶8It has been further held by the Hon'ble Apex Court 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.

¶9In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex Court has held that : "11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87 Cr.P.C that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

¶12In sofar as the present case is concerned and the general principles under Section 170Cr.P.C, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

¶10Hence, considering the settled principles of law regarding anticipatory bail, 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 conclusion of trial in the matter.

¶11The anticipatory bail application is allowed accordingly.

¶12In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :- i. 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 from disclosing such facts to the Court or to any police officer or tamper with the evidence. ii. The applicant shall not pressurize/ intimidate the prosecution witness. iii.The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. iv.The applicant shall not leave India without prior permission of the Court and if he has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.

¶13In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law. It is clarified that the observations made in this application are only restricted for disposal of the anticipatory bail application and the trial Court while deciding the case finally will not be influence the same. Order Date :- 28.11.2023 Fhd High Court of Judicature at Allahabad