Siddharth - (1.) Order on Criminal Misc. Correction Application No. 02 of 2020 The notice of the above noted anticipatory bail application was served online on the Government Advocate on 09.05.2020. By the order dated 20.05.2020 the above noted application was decided by this court since despite grant of time to learned Government Advocate no objection was received and the applicant was granted anticipatory bail till the submission of police report under Section 173 (2) Cr.P.C. Correction application has been filed on behalf of applicant on the ground that in the present case chargesheet has been filed by the Investigating Officer therefore the grant of limited anticipatory bail till the submission of report under Section 173(2) is not justified, in view of the recent Apex Court's judgment in the case of Sushila Aggarwal v. State (NCT of Delhi) 2020 SCC online SC 98. It has further been stated that this court in the case of Siddharth Varadarajan v. State of U.P. and another passed in Bail No. 2778 of 2020 (anticipatory bail) on 13.05.2020 has granted bail to the applicant without any limitation. The facts of the case as pleaded in the affidavit in support of anticipatory bail application are that the prosecutrix lodged the First Information Report dated 29.08.2018 against co-accused, Jai Shankar Upadhyay and two unknown persons under Sections 376-D, 376(2)(n) 420, 506 of I.P.C. alleging therein that she works in Delhi and when she was coming to her hometown, she met one Jai Shankar Upadhyay who claimed himself to be Lekhapal, Tehsil Bansi, District- Siddharth Nagar. He promised her to provide job and demanded certain amount for payment to higher officers. Prosecutrix gave him the demanded amount but the said Jai Shankar Prasad did not provided her job and raped her continuously for three years by taking advantage of his position and her helplessness. It was further alleged that he also made her obscene video and when she opposed it, co-accused, Jai Shankar Upadhyay, started hatching conspiracy of her murder with his friends. Jai Shankar Upadhyay is threatening her that he will make the video viral on account of which she had to made complaints to his higher officers. Applicant is not named in the First Information report. He is neither driver nor friend of co-accused, Jai Shankar Upadhyay. During the investigation, the investigating officer recorded the statement of prosecutrix under Section 161 Cr.P.C on 30.08.2018. In her statement she narrated the same story as mentioned in the First Information Report. The statement of the prosecutrix was recorded under section 164 of Cr.P.C. before learned Magistrate on 01.09.2018. In her statement, she reiterated the allegations against Jai Shankar Upadhyay regarding commission of rape and video recording. She very specifically stated that it is Jai Shankar who made the video of rape. She further alleged that she gave about Rs. 4.5 Lacs between 2015 to 2017 to co-accused, Jai Shankar Upadhyay, Lekhpal, by borrowing money from the applicant, Parvez and one Krishna. It is clear from the perusal of the statement of the prosecutrix, that the applicant is well known to her and she borrowed money from him. There is not a single allegation against the applicant in the statement of prosecutrix recorded under section 164 Cr.P.C. before Magistrate. Co-accused, Jai Shankar Upadhyay, Lekhpal is very influential person. The investigating officer, Mahendra Kumar Chaturvedi colluded with him. First, he threatened the prosecutrix to change her statement and withdraw case against Jai Shankar Upadhyay. When she did not relent, she was mercilessly beaten by the police including the investigating officer. In the said circumstances, the prosecutrix filed a Criminal Misc. Writ Petition No. 27214 of 2018 before this court with the prayer to change of investigating officer and to set an inquiry conducted as to why she was beaten by police. This Court vide order dated 28.09.2018 disposed of the said petition directing the S.P., Basti to inquire into the matter and further directed to ensure the investigation of the case be conducted by competent Investigating Officer in a fair manner, but in vain. Co-accused, Jai Shankar Upadhyay, succeeded in his design and got the applicant falsely implicated along with one Krishna in the case with the help of the Investigating officer. The Investigating officer made entry of false and fabricated statement dated 19.09.2018 of Prosecutrix in the case diary. In the said statement, it has been alleged that the applicant, Parvez and co-accused, Krishna, recorded the video when Jai Shankar was committing rape on the prosecutrix. Thus, on the basis of the said statement, the investigating officer made the applicant and Krishna accused in the case under Section 120-B for offence conspiracy of rape. Prosecutrix moved several applications for the compliance of the order dated 29.09.2018 passed by this this Court in writ petition before S.P., Basti but S.P., Basti neither passed any order on the applications submitted by the prosecutrix nor changed the Investigating officer. She again moved an application/ reminder dated 6.01.2019 before S.P., Basti and prayed for compliance of the order dated 29.09.2018 passed by this Court in Criminal Writ No. 27214 of 2018. In her application she very specifically stated that she has no grievance with the applicant Parvez and the Investigating Officer, Mahendra Kumar Chaturvedi, is falsely implicating him on personal grudge. But the S.P., Basti remained silent and did not take any action on the said application. Despite the repeated requests and order of this Court, the investigating officer was not changed and ultimately a charge-sheet dated 09.03.2019 was submitted against Jai Shankar Upadhyay, Krishna and the applicant under section 376-D, 420, 506, and 120B I.P.C. by the same investigating officer i.e., Mahendra Pratap Chaturvedi. As soon as, prosecutrix came to know about the false implication of the applicant she moved an application before the Circle Officer, Kotwali, District Basti along with Affidavit to the effect that applicant Parvez is not involved in the case and he has been falsely implicated by the police and she further requested that Investigating Officer be directed to not to proceed against the applicant. The Circle Officer did not take any action on the application of the Prosecutrix and forwarded the charge-sheet before the concerned Court. The learned Court below, took cognizance of offences on the charge sheet vide order dated 05.07.2019 and summoned the accused persons. Applicant filed a Criminal Misc. Application (U/S 482 of Cr.P.C.) No. 30523 of 2019 before this Court against the charge-sheet dated 09.03.2019 and cognizance order dated 05.07.2019. The said application is still pending before this Court. Co-accused, Krishna ,who has been assigned similar role has already been released on bail by this Court vide order dated 04.01.2019. Main accused of this case, namely, Jai Shankar Upadhyay, has also been granted bail in the aforesaid case by this Court vide order dated 4.01.2019 passed in Criminal Misc. Bail Application No. 45975 of 2019. The sole allegation against the applicant is that he along with co-accused, Krishna, recorded the video when the co-accused, Jai Shankar Upadhyay, was committing rape. However, the said version is not supported by the prosecutrix either in her statement under section 161 Cr.P.C. or 164 Cr.P.C. The police is regularly visiting the house of the applicant. It is taking coercive action against the applicant despite the fact that Criminal Misc. Application (under Section 482 Cr.P.C) challenging the charge sheet and impugned cognizance order of the court below is still pending before this Court. Applicant is not having any other criminal case registered against him and he is not a previous convict. Before proceeding with this case further the concept of anticipatory bail and its application to the state of Uttar Pradesh is required to be considered. The word 'anticipatory bail' has not been defined anywhere in the Cr.P.C. Under Section 438 Cr.P.C there is no use of term 'anticipatory bail' anywhere. It only provides that 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 under this Section that in the event of such arrest he shall be released on bail. Therefore it is clear that anticipatory bail is granted before the arrest of the accused takes place. It is pre-arrest bail as distinguished from post arrest bail granted by the High Court or the Court of Session under Section 439 Cr.P.C. Under Section 439 Cr.P.C the High Court or the Court of Session have been vested with power to grant bail to any person accused of an offence and in custody. Therefore it is clear that bail under Section 439 Cr.P.C can only be granted to an accused person when he has been arrested or has surrendered to the custody of the court. In the case of anticipatory bail the custody of accused person is not with the court or the police at the time of grant of bail. The custody of accused person only comes to the court when he is arrested and subsequently released on anticipatory bail on furnishing personal bond and sureties to the satisfaction of the court or the police officer concerned. In the state of Uttar Pradesh the concept of anticipatory bail was introduced in Cr.P.C. by 1973 amendment but vide U.P. Act No. 16 of 1976 (w.e.f., 28.11.1975) it was omitted during emergency. After about 43 years the anticipatory bail has been restored in Uttar Pradesh vide U.P. Amendment to Section 438 Cr.P.C. The amendment bill received the approval of the President on 01.06.2019 and has been brought into force w.e.f., 06.06.2019. The said provision can be invoked by a person who has a 'reasonable apprehension' that he may be arrested for committing a non-bailable offence. The main purpose for incorporating Section 438 in Cr.P.C. was that the liberty of an individual should not be unnecessarily jeopardised. Right to life and personal liberty are the important fundamental rights guaranteed by the constitution and therefore, no person should be confined or detained in any manner unless he has been held guilty. The provision of 438 Cr.P.C., (U.P. Amendment) is reproduced hereinbelow:- '438. (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 anticipatory bail: Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application. (2) Where the High Court or, as the case may be, the Court of Session, consider it expedient to issue an interim order to grant anticipatory bail under sub section (1), the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit, and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely:- (i) that the applicant shall make himself available for interrogation by a police officer as and when required; (ii) that 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; (iii) that the applicant shall not leave India without the previous permission of the Court; and (iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. Explanation:- The final order made on an application for direction under sub-section (1); shall not be construed as an interlocutory order for the purpose of this Code (3) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court (4) On the date indicated in the interim order under sub-section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order. (5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under sub-section (1), within thirty days of the date of such application. (6) Provisions of this section shall not be applicable - (a) to the offences arising out of - (i) the Unlawful Activities (Prevention) Act, 1967; (ii) the Narcotic Drugs and Psychotropic Substances Act, 1985; (iii) the Official Secret Act, 1923; (iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. (b) in the offences, in which death sentence can be awarded. (7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session.' On account of omission of the provision of anticipatory bail from Cr.P.C regarding the State of Uttar Pradesh for long time there is considerable uncertainty regarding the scope of anticipatory bail in the State of Uttar Pradesh. The air of uncertainty has been cleared by the Apex Court by its Constitution Bench judgment Sushila Aggarwal v. State (NCT of Delhi)- 2020 SCC Online SC 98. The Apex Court in the case of Sushila Aggarwal v. State (NCT of Delhi)- 2020 SCC Online SC 98, has resolved the conflicting views of different Benches of the Apex Court. Constitution Bench had considered the Constitution Bench judgment in the case of Gurbaksh Singh Sibbiya and others v. State of Punjab (1980) 2 SCC 565; Siddharam Satlingappa Mhetri v. State of Maharashtra, (2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152 on one side which provide that there is no limit to the currency of an order of anticipatory bail and on the other side the judgment of Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667 followed in the cases of K.L. Verma v. State and another (1998) 9 SCC 348; Sunita Devi v. State of Bihar (2005) 1 SCC 6087; Nirmal Jeet Kaur v. State of M.P., 7 SCC 558; HDFC Bank Limited v. J.J. Mannan, (2010) 1 SCC 679 and Satpal Singh v. State of Punjab, (2018) 4 SCC 303 which laid down restrictive conditions or terms limiting the grant of anticipatory bail to a definite period. The Apex Court in the Constitution Bench judgment framed two questions for consideration:- '1. Whether the protection granted to a person under Section 438 Cr.P.C should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail. 2. Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court.' The Apex Court has in an elaborate judgment after considering both the sets of judgments mentioned above has answered the above questions as follows:- (1) Regarding Question No. 1, this court holds that the protection granted to a person under Section 438 Cr. PC should not invariably be limited to a fixed period; it should inure in favour of the accused without any restriction on time. Normal conditions under Section 437 (3) read with Section 438 (2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event) etc. (2) As regards the second question referred to this court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so. 1. This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC: (1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565 when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. (2) It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail. (3) Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. 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. The courts would be justified ? and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed. (4) 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; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. (5) Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. (6) An order of anticipatory bail should not be 'blanket' in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. (7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail. (8) The observations in Sibbia regarding 'limited custody' or 'deemed custody' to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that 'if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.' (9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. (10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. (11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam and Etc. Etc v. Ramprasad Vishwanath Gupta and Anr; Jai Prakash Singh (supra) State through C.B.I. v. Amarmani Tripathi). This does not amount to 'cancellation' in terms of Section 439 (2), Cr. PC. (12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra and subsequent decisions (including K.L. Verma v. State and Anr; Sunita Devi v. State of Bihar and Anr ; Adri Dharan Das v. State of West Bengal; Nirmal Jeet Kaur v. State of M.P. and Anr62; HDFC Bank Limited v. J.J. Mannan 63; Satpal Singh v. (2011) 6 SCC 189 (2005) 8 SCC 21 2011 (1) SCC 694 (1996 (1) SCC 667) 1998 (9) SCC 3482005 (1) SCC 608 2005 (4) SCC 303 2004 (7) SCC 558 2010 (1) SCC 679 the State of Punjab and Naresh Kumar Yadav v Ravindra Kumar) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.
(2.) The reference is hereby answered in the above terms.' Now considering the present case in the light of the above consideration of the Apex Court's Judgment this court finds that from the allegation on record it is clear that the prosecutrix is not implicating the applicant for any offence. Her stand is that the applicant was infact helping her. No allegation of gang rape has been alleged against the applicant. The only allegation against the applicant is that he was doing videography when the prosecutrix was subjected to rape by the main accused, Jai Shankar Upadhyay. This allegation has also not been accepted by the prosecutrix and she had approached this court by way of Criminal Misc. Writ Petition No. 27214 of 2018 praying that fair investigation may be conducted. She prayed before this court that the Investigating Officer had beaten her and is harassing her for changing her statement against the main accused. This court directed the Superintendent of Police, Basti to entrust the investigation to a competent Investigating Officer to conduct fair investigation by the order dated 28.09.2018. On 11.03.2019 the prosecutrix herself give application to his Circle Officer, Police Station- Kotwali, District- Basti duly supported by affidavit that the applicant had no role in the incident and he has been falsely implicated but nothing was done. The co-accused, Krishna Gopal Yadav @ Krishna Yadav, has already been granted regular bail by this court vide Criminal Misc. Bail Application No. 43622 of 2018. The main accused, Jai Shankar Upadhyay, has already been granted bail vide Criminal Misc. Bail Application No. 45759 of 2018 on 04.01.2019. There is specific averment in paragraph 24 of the affidavit in support of the bail application that the police is regularly approaching the house of the applicant and is trying to arrest him. In view of the fact that the two co-accused persons were arrested and then enlarged on bail there appears to be definite apprehension of arrest against the applicant. Hence the applicant is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal v. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court. Without expressing any opinion on the merits of the case and considering the nature of accusations and his antecedents, the applicant is entitled to be released on anticipatory bail in this case. In the event of arrest of the applicant- Parvez Ahmad, involved in Case Crime No. 585 of 2018, under Sections- 376D, 420, 506, 120-B IPC, Police Station- Kotwali, District- Basti, he shall be released on anticipatory bail on furnishing a personal bond of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:- 1. The applicant shall not leave India during the currency of trial without prior permission from the concerned trial Court. 2. The applicant shall surrender his passport, if any, to the concerned trial Court forthwith. His passport will remain in custody of the concerned trial Court. 3. That 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; 4. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant. 5. In case, the applicant misuses the liberty of bail, the trial Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal v. State (NCT of Delhi)- 2020 SCC Online SC 98. 6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. 7. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 8. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. The order dated 20.05.2020 passed by this court stands corrected and replaced by the present order. The correction application is allowed. ;