TMI Blog2021 (6) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... within 30 days of the filing of application. Section 438(7) provides that if an application for grant of anticipatory bail has been filed by any person before the High Court, no such application shall be entertained by the Sessions Court. Therefore, as per the doctrine of selection of remedies, when an application for grant of anticipatory bail is made to this Court, it expressely bars entertainment of the same by the Court of Session - Once a person has choosen to approach this Court praying for grant of anticipatory bail, by operation of law, his opportunity to approach the Sessions Court gets extinguished. Therefore, he incurs disadvantage by choosing to abdicate his remedy before the Court of Session. Where the statute clearly provides the option for choosing a remedy and the applicant chooses one such remedy he cannot be compelled to disclose reasons why he has choosen such a remedy, when the statute does not requires the same to be stated. The informant/ complainant may take objection to the relief being granted to the applicant and may be dissatisfied from the observations made in this judgment in favour of accused. However, they should not lose sight of the fact that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 ₹ 3,25,000/- by means of a cheque as the booking amount. Thereafter he took loan and paid total amount of ₹ 27,27,875/-. He has not been given possession of flat. 6. Learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im 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, considers 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, arid 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 438(2) Cr.P.C. Where the Court grants an interim order it shall cause a notice of application served on the public prosecutor as per Section 438(3) Cr.P.C granting him not less than 7 days time, to seek instruction. After affording opportunity of hearing to the public prosecutor, the application shall be heard by the Court. After hearing the public prosecutor and the applicant, the Court may either confirm, modify or cancel the interim order as per Section 438(4) Cr.P.C. Section 438(5) Cr.P.C further provides that the High Court or the Court of Session shall finally dispose of such an application within 30 days of filing of the same. 11. In this Court, the anticipatory bail applications are filed after due service of notice in the office of Government Advocate, as per Chapter XVIII, Rule - 18 of Allahabad High Court Rules. The aforesaid rule provides that no bail application shall be placed before the Court unless two days have elapsed prior to the presentation of the application before the Court. 12. There is no provision in the Rules of Court regarding filing and entertainment of anticipatory bail application. 13. However all the anticipatory bail applications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii), (iii) and (iv) Cr.P.C for grant or rejection of anticipatory bail application. 18. In the aforesaid section the words inter alia are very important. They grant liberty to the Court to exercise its descretion in a particular case according to the facts and circumstances of the case, regarding grant or rejection of anticipatory bail. 19. The Apex Court in the case of Gurubaksh Singh Sibbia, etc., vs. State of Punjab, 1980 AIR 1632 was also conscious of the fact that the future is so unpredictable that no fixed criteria can be laid down for the grant or rejection of anticipatory bail of an accused by the High Court or the Court of Session. It was held by the Apex Court that the High Court and the Court of Session are competent to deal with the case as per their knowledge and experience. It further held that the legislature conferred vide descretion on the High Court and the Court of Session to grant anticipatory bail because it felt that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and the Courts were given free hand in this regard. Departing from the terms of Sections 437 and 439 Cr.P.C., Section 438(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislature, in its wisdom, left it open for the Court to apply the law of anticipatory bail as per the facts of the case and the circumtances involved therein. 23. The law is a dynamic concept and it is required to be interpreted as per the requirements of time. With the change in the requirements of time, the interpretation and application of law is required to be adopted with change. The law of anticipatory bail is founded only on the apprehension of arrest. The apprehension may be of pre-recording or post-recording stage of the FIR. However, the pre-requisite condition of apprehension of arrest is survival of the accused. Only when the accused would be protected from apprehension of death the apprehension of his arrest would arise. Article 21 of the consititution of India provides for protection of life and personal liberty of every citizen of the country. The protection of life is more important than the protection of personal liberty of a citizen. Unless the right to life is protected the right to personal liberty would be of no consequence. It is clear that the right to life is more precious and sacrosanct than the right to personal liberty which is sought to be protecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the deadly infection of novel corona virus but they cannot approached the Court on account of limitations of resources. 27. The Apex Court in the case of Suo Motu Writ Petition (C) No. 1/2020 In Re: Contagion of Covid 19 Virus in Prisons has considered the measures for de-congestion of the jails on account of threat of spread of infection of novel corona virus and by the order dated 07.05.2021 has held as follows:- 5. An unprecedented surge in Covid-19 during the last few weeks has resulted in a steep spike in the number of people who are affected by Covid-19. In the present situation there is a serious concern about the spread of Covid-19 inovercrowded prisons where there is lack of proper sanitation, hygiene and medical facilities. 6. Mr. Colin Gonsalves, learned Senior Counsel appearing for the Applicant submitted that the High Powered Committees which have been constituted pursuant to the orders passed by this Court on 25.03.2020 should be directed to release all those prisoners who have been released last year on regular bail. Such of those inmates who have been granted parole last year should be granted 90 days parole by this Court. He requested that all orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n casually and mechanically. In order to ensure what we have observed above, we give the following directions: 11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC; 11.2. All police officers be provided with a check list containing specified sub-clause under Section 41(1)(b)(ii); 11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; 11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention; 11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of institution of the case with a copy of the Magistrate which may be extended by the Superintendent of Police of the district for the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fight against the pandemic is greatly benefitted by transparent administration. In this regard, our attention was drawn to example of Delhi, wherein the prison occupancy is updated in websites. Such measures are required to be considered by other States and should be adopted as good practice. Moreover, all the decisions of High-Powered Committees need to be published on respective State Legal Service Authorities/State Governments/High Courts websites in order to enable effective dissemination of information. 14. Overcrowding of prisons is a phenomenon, plaguing several countries including India. Some prisoners might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus. In such extraordinary cases, the authorities are directed to be considerate to the concerns of the inmates. The authorities are directed to ensure that proper medical facilities are provided to all prisoners who are imprisoned. The spread of Covid-19 virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment should be made available to the inmates and the staff. It is neces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has been made for injuring and humiliating the applicant by getting him arrested have now lost significance on account of present situation of the country and the State on account of spread of second wave of novel corona virus. 31. There is also threat of spread of third wave of novel corona virus looming large over the entire country and it is uncertain when the aforesaid wave will abate and normal functioning of the Courts would be restored. Therefore, the apprehension of an accused being infected with novel corona virus before and after his arrest and the possibilty of his spreading the same while coming into contact with the police, Court and jail personnels or vice-versa can be considered to be a valid ground for grant of anticipatory bail to an accused. The conventional and well settled grounds for grant of anticipatory bail to an accused implicated for alleged commission of non-bailable offence can be considered after the normal conditions in the society and the courts are restored then the anticipatory bail application of the accused persons shall be considered on ordinary parameters like in ordinary times. The experts are of the view that the third wave is likely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the last year, has now spread to the villages. The State Government is having tough time in controling the spread of novel corona virus in urban areas and it would be very difficult to conduct the test, detect and treat the village population found suffering from novel corona virus. The State lacks preparation and resources for the same at present. On account of the recent panchayat elections in the State large number of FIR's have been lodged in the villages. Even otherwise the crime rate in the village is quite high in the State. Keeping in view the overall situation of the villages after the Panchayat elections large number of accused persons may be infected and their infection may not have been detected. 34. In view of the above facts and circumstances and after finding that the apprehension to life in the current scenario is a ground for grant of anticipatory bail to an accused, this Court hereby directs that the applicant, in case of his arrest, shall be enlarged on anticipatory bail for the limited period, till 03 of January, 2022 on the following conditions:- 1. The applicant shall, at the time of execution of the bond, furnish his address and mobile number and sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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