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ALLAHABAD HIGH COURT
Siddharth, J.
Prateek Jain – Applicant
versus
State of U.P. and Ors. – Opp. Parties
Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C. No.4002 of 2021
Decided on 10.5.2021
(A) Criminal Procedure Code, 1973 – Section 438(7) – Anticipatory Bail – Case Crime registered under Sections 420, 467, 468, 471, 506, 406, IPC – As per doctrine of selection of remedies, when an application for grant of anticipatory bail is made to High Court, it expressly bars entertainment of same by Court of Session – There is no requirement of giving any special or compelling reason to approach this Court for grant of anticipatory bail without approaching Court of Session – Once a person has chosen to approach High Court praying for grant of anticipatory bail, by operation of law, his opportunity to approach Sessions Court gets extinguished – He incurs disadvantage by choosing to abdicate his remedy before Court of Session – Where statute clearly provides option for choosing a remedy and applicant chooses one such remedy he cannot be compelled to disclose reasons why he has chosen such a remedy, when statute does not requires the same to be stated. (Para 20)
(B) Criminal Procedure Code, 1973 – Section 438 – Anticipatory Bail – Legislature, in its wisdom, left it open for Court to apply law of anticipatory bail as per facts of case and circumstances involved therein – Law is a dynamic concept and it is required to be interpreted as per requirements of time – With change in requirements of time, interpretation and application of law is required to be adopted with change – Law of anticipatory bail is founded only on apprehension of arrest – Apprehension may be of pre-recording or post-recording stage of FIR – However, pre-requisite condition of apprehension of arrest is survival of accused – Only when accused would be protected from apprehension of death apprehension of his arrest would arise – Article 21 of Constitution of India provides for protection of life and personal liberty of every citizen of country – Protection of life is more important than protection of personal liberty of a citizen – Unless right to life is protected right to personal liberty would be of no consequence – Second wave of novel corona virus has given rise to apprehension of death of an accused – If he is arrested and subjected to subsequent procedures of detention in lock-up, production before Magistrate, grant or rejection of bail or incarceration in jail, apprehension to his life will certainly arise – Right to life guaranteed under Article 21 of Constitution of India is paramount and by mere implication in a case of alleged commission of non-bailable offence, right to life of an accused person cannot be put to peril – Allegations may be serious against accused but presumption of innocence in his favour cannot be dispelled only on the basis of allegation. (Paras 22, 23, 24 and 29)
(C) Criminal Procedure Code, 1973 – Section 438 – Anticipatory Bail Application – Case Crime registered under Sections 420, 467, 468, 471, 506, 406, IPC – Extraordinary times require extraordinary remedy and desperate times require remedial remedy – Established parameters for grant of anticipatory bail like nature and gravity of accusation, criminal antecedent of applicant, possibility of fleeing from justice and whether accusation has been made for injuring and humiliating applicant by getting him arrested have now lost significance on account of present situation of country and State on account of spread of second wave of novel corona virus – In view of facts and circumstances and after finding that apprehension to life in current scenario is a ground for grant of anticipatory bail to an accused, applicant, in case of his arrest, shall be enlarged on anticipatory bail for limited period. (Paras 30 and 34)
Result: Anticipatory Bail Application allowed.
JUDGMENT
Siddharth, J.—As per Resolution dated 07.04.2021 of the Committee of this Court for the purpose of taking preventive and remedial measures and for combating the impending threat of Covid-19, this case is being heard by way of virtual mode.
2. Heard Sri Avnish Kumar Srivastava, learned counsel for the applicant and learned A.G.A for State through video conferencing.
3. The instant anticipatory bail application has been filed with a prayer to grant an anticipatory bail to the applicant, Prateek Jain, in Case Crime No. 1906 of 2020 under Section 420, 467, 468, 471, 506, 406 IPC, Police Station-Sihani Gate, District-Ghaziabad.
4. Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
5. There are allegations against the applicant that he along with other co-accused persons is director of a builder company. The applicant applied for a flat being constructed by the company and paid Rs. 3,25,000/- by means of a cheque as the booking amount. Thereafter he took loan and paid total amount of Rs. 27,27,875/-. He has not been given possession of flat.
6. Learned counsel for the applicant submits that he is not the director of the builder company in dispute. He is only related to the other directors and hence he has been falsely implicated in this case. On account of demonetization and the slump caused in the business of real estate the present dispute arose. The informant has remedy under the Real Estate (Regulation and Development) Act, 2016.
7. Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, she is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
8. Since the application has been heard through video conferencing and the connectivity was not very good, the Court could not gather the complete submissions raised at the Bar. However, keeping in view the mandate of Section 438(5) Cr.P.C., which requires disposal of anticipatory bail application within 30 days and also considering the spread of second wave of novel corona virus, the hearing of this bail application does not deserves to be adjourned in the larger interest of justice. Due to lack of proper technical support the cause of justice cannot be allowed to suffer.
9. After considering the rival contentions, this Court before proceeding further, considers it appropriate to go through the Section 438 Cr.P.C, U.P. Amendment of 2019, which is as follows:-
“438. Direction for grant bail to person apprehending arrest.—(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely—
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;
either reject the application forthwith or issue an interim order for the grant of
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