Gopal Krishna Saxena v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12685 of 2023 Applicant :- Gopal Krishna Saxena Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prabhakar Awasthi Counsel for Opposite Party :- G.A.,Bharat Singh Pal,Shivangi Tripathi Hon'ble Nalin Kumar Srivastava,J.

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

¶2This application for anticipatory bail has been filed by applicant-Gopal Krishna Saxena in connection with Complaint Case No. 305 of 2023 under sections 498A and 406 IPC, P.S. Chandausi, District-Sambhal.

¶3The complainant was subjected to cruelty and was ousted from her matrimonial house by the present applicant, who was living in live-in relationship with some other lady and also misappropriated the stridhan of the complainant. The summoning order was passed by the Magistrate Court on 18.7.2023 and the present applicant was summoned to face the trial under Section 498A and 406 I.P.C.

¶4It 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. Charge sheet in the matter has been submitted. It is further submitted that the present is a case of simple matrimonial dispute, all the allegations contained in the complaint are vague and false. It is further submitted that the complainant by her own will deserted the present applicant, she was never ousted from her matrimonial house and the stridhan was also not misappropriated by the present applicant. It is further submitted that the applicant has no criminal history to his credit, he is ready and willing to cooperate with the trial Court and is entitled for anticipatory bail. 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. and learned counsel for the informant has opposed the prayer for anticipatory bail. It is submitted that the complainant was tortured by the present applicant, he was living in live-in relationship with some other lady and she was ousted from her matrimonial house by the present applicant.

¶6In the present case the marriage between the parties had taken place in 2003 that is to say almost 20 years prior to the filing of the complaint. General allegations have been levelled in the complaint. No custodial interrogation is required. The divorce suit is also pending between the parties.

¶7Although 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.

¶8It 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.

¶9It 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.

¶10In 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."

¶11Hence, 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.

¶12The anticipatory bail application is allowed accordingly.

¶13In 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.

¶14In 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. Order Date :- 11.12.2023 Fhd High Court of Judicature at Allahabad