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IN THE HIGH COURT OF ALLAHABAD
HON'BLE PANKAJ BHATIA, J.
Achchey Lal Jaiswal - Applicant
Versus
State of U.P., Thru. Prin. Secy. Home Deptt. Lko And Another - Opposite Parties
Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 1422 of 2024
Decided On : 15-07-2024
ANTICIPATORY BAIL - CRIMINAL PROCEDURE CODE - Section 438, Section 437 - The court discussed the provisions of Section 438 of the Cr.P.C. regarding anticipatory bail, emphasizing that the power to grant anticipatory bail is discretionary and should be exercised judiciously based on the facts of each case. The court highlighted that anticipatory bail can be granted even in serious offences unless specifically barred by law. The interpretations of relevant case law established that the applicant's age, lack of flight risk, and the nature of the allegations were significant factors influencing the court's decision to grant bail.
Fact of the Case:
The applicant, aged 74, sought anticipatory bail under Section 438 of the Cr.P.C. in response to an FIR alleging forgery and conspiracy related to a registered Will. The FIR was filed after a civil suit where the informant claimed the Will was forged, and the applicant was an attesting witness. The applicant argued that the FIR was a result of civil disputes and that he was not a flight risk.
Finding of the Court:
The court found that the FIR was lodged after a significant delay and after the civil injunction was confirmed. The applicant's age and lack of evidence suggesting he would tamper with the trial were also considered. The court concluded that the applicant was entitled to anticipatory bail.
Issues: Whether the non-disclosure of previous legal actions by the applicant was fatal to the anticipatory bail application, and whether the applicant's conduct warranted the denial of bail.
Ratio Decidendi: The court held that anticipatory bail is a discretionary power that should be exercised based on the specific circumstances of the case, including the applicant's age, the nature of the allegations, and the absence of a flight risk. The court emphasized that the provisions of Section 438 of the Cr.P.C. allow for anticipatory bail unless explicitly restricted by law.
Final Decision: The anticipatory bail application was allowed, granting the applicant bail on specific conditions until the conclusion of the trial.
JUDGMENT :
Hon'ble Pankaj Bhatia, J.
1. Heard learned Counsel for the applicant as well as Sri V.K. Singh, learned Government Advocate assisted by Sri Shivendra Shivam Singh Rathore, learned brief holder and Sri Vivek Kumar Rai, learned Counsel appearing on behalf of the complainant and perused the record.
2. The present application has been filed by the applicant aged about 74 years under Section 438 of Cr.P.C. seeking anticipatory bail apprehending arrest in FIR No.298 of 2023, under Sections 120B, 420, 465, 466, 467, 468, 471 IPC, Police Station Kotwali Nagar, District Sultanpur.
3. It is stated that an FIR dated 10.04.2023 was lodged with the allegations that the mother of the informant was owner of the property and adjacent to the said property, there was a property of the son-in-law of the applicant and on account of bad intention, a registered Will was executed by the mother on 17.07.2019, in which, the son-in-law of the applicant and his wife and the applicant were shown as heirs of the said mother. It was stated that the applicant was the attesting witness to the said Will.
4. The Counsel for the applicant argues that the Will was a registered Will and on account of the dispute in between the parties, a civil suit was filed being Original Suit No.1343 of 2016, in which, the informant had appeared and has filed his written statement taking a specific plea that the Will was a forged Will. Despite the said, an injunction order came to be passed in favour of the plaintiffs on 15.02.2023 after hearing the parties and after the injunction order was made final, the present FIR was registered on 10.04.2023 at the instance of defendants of civil suit.
5. The Counsel for the applicant also draws my attention to the proceedings pending in the court of Tehsildar, Sadar in between the parties in respect of the said land. He thus argues that essentially after the informant having failed in the civil suit for vacation of the injunction, the present FIR was lodged. Essentially a civil case is being converted into a criminal case.
6. The Counsel for the informant and the learned G.A. Sri V.K. Singh oppose the prayer for grant of anticipatory bail mainly on the ground that there was concealment of material facts.
7. It was stated by the Counsel for the State that the applicant had approached this Court by filing a petition under Article 226 of the Constitution of India for quashing of the FIR, in which, an interim order was obtained in favour of the applicant being Criminal Misc. Writ Petition No.3559 of 2023. In pursuance thereto, the applicant was not arrested. The said writ petition was dismissed on 18.08.2023 for want of prosecution. Thereafter, an application was filed for recall of the order dated 18.08.2023 and ultimately, the said order was recalled and also extended the interim order till the next date of listing, while issuing notice to the private opposite parties. It is argued that despite the restoration of the writ petition, the applicant filed an application under Section 482 of Cr.P.C. being Application No.9084 of 2023 challenging the charge-sheet, as the charge-sheet has already been filed on 09.08.2023 and the court had taken cognizance on 11.08.2023. He thus argues that the filing of an application under Section 482 of Cr.P.C. demonstrates that the applicant was aware of the charge-sheet and despite being aware, the Criminal Misc. Writ Petition No.3559 of 2023 was got restored and the interim order was got extended.
8. The Counsel for the State further argues that the Application U/S 482 Cr.P.C. No.10202 of 2023 filed by the applicant came to be dismissed on 17.01.2024 mainly noticing the conduct of the applicant in getting the writ petition restored despite the charge-sheet having been filed, however, the Court had made observations that as the applicant is an old person and suffering from various aliments, he may avail his remedy in the light of the provisions of Section 437 of Cr.P.C. and also may avail his remedy of filin
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Anticipatory bail can be denied if the applicant fails to comply with court orders and conditions, especially in serious cases involving multiple FIRs.
Anticipatory bail is an extraordinary remedy, granted sparingly in serious cases, and requires compliance with court conditions; failure to do so can lead to rejection of bail applications.
Anticipatory bail is an extraordinary remedy that should be granted sparingly, especially in serious cases, and requires strict compliance with court-imposed conditions.
Anticipatory bail under Section 438 CrPC is an extraordinary remedy, granted only in exceptional circumstances, particularly when the applicant is not a proclaimed offender.
Point of Law : Bail - Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre arrest bail should be granted only in exceptional cas....
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