Asaram & 5 Ors v. State of Uttar Pradesh

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13056 of 2023 Applicant :- Asaram & 5 Ors Opposite Party :- State Of Uttar Pradesh Counsel for Applicant :- Man Mohan Mishra Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1This application has been moved on behalf of the applicants - Asaram, Rajaram, Dukkhiram, Dangar Yadav, Lalbahadur and Brahmdutt seeking anticipatory bail in Case Crime No. 280 of 2022, under Sections 3 and 5 U.P. Prevention of Damages to Public Property Act, Police Station Aurai, District Bhadohi.

¶2Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.

¶3It is submitted by the learned counsel for the applicants that applicants are innocent and they have apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against them. Allegations levelled against the applicants are false. It is further submitted that on the spot the memo dated 7.9.2022 prepared by the police is a fabricated document, which does not bear even signature of the informant, the lekhpal or the Gram Pradhan. It is also submitted that the applicant no.6 has not been shown in the map prepared by the police itself and it is not clear as to how he was made an accused in this case. It is further submitted that no specific measurement has been made at the time of inspection of spot by the police. It is also submitted that on the spot memo there is no signature of Nayab Tehsildar or any member of the police party. It is also submitted that the nature and scope of the encroachment has not been specifically shown in the charge sheet of the case. After completion of investigation, charge sheet has been submitted in the matter. No process under Sections 82 and 83 CrPC has been issued against the applicants and the applicants have not been declared absconder. The alleged offences are punishable with the imprisonment for a maximum period of seven years. Applicants have no criminal history to their credit. In case applicants are granted anticipatory bail, they will not misuse the liberty of bail and would obey all conditions of bail.

¶4Learned A.G.A. opposed the prayer for anticipatory bail and submitted that the matter relates to the offence of encroachment of a public chakroad and ample evidence has been collected against the applicants.

¶5I have considered the rival submissions made by the learned counsel for the parties.

¶6In this matter, from the perusal of the record it reveals that a public chakroad has been encroached by the present applicants and F.I.R. was lodged on 16.12.2022 and investigation started, which culminated into charge sheet. It also reveals that the applicants have been cooperative during investigation. Alleged offences are punishable with the imprisonment for a maximum period of seven years. During investigation the I.O. of this case did not require the custodial interrogation of the present applicants and now after submission of charge sheet, no custodial interrogation is required.

¶7In 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. It 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. It 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, likelihood 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.

¶8In 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 170 CrPC 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 173 CrPC. 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 CrPC 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.

¶12Insofar as the present case is concerned and the general principles under Section 170 CrPC, 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."

¶9Considering the settled principles of law regarding anticipatory bail, nature of accusation, role of applicants and all attending facts and circumstances of the case, without expressing any opinion on the merits of the case, in my view, it is a fit case for anticipatory bail to the applicants till the end of trial.

¶10The application is allowed accordingly.

¶11In the event of arrest of the applicants, they shall be released on anticipatory bail on their 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 applicants shall make themselves available before the Court concerned on the date fixed in the matter and will cooperate in the trial.

(ii) The applicants 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.

(iii) The applicants shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. Concerned.

¶12In case of default of any of the conditions, the same may be a ground for cancellation of protection granted to the applicants. Order Date :- 11.12.2023 safi High Court of Judicature at Allahabad