TMI Blog2020 (5) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... arrested on security being taken for his appearance'. In Nagendra v. King Emperor [ 1923 (10) TMI 1 - CALCUTTA HIGH COURT] , it is held that the object of the bail is to secure the attendance of the accused at the time of the trial and that the proper test to be applied for the solution of the question whether bail should be granted or not is whether it is probable that the party will appear to take his trial. Thus, it is clear that the object of the bail is to secure the attendance of the accused at the trial. The accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself in, the trial than if he is in custody. In other words, as the Apex court holds, a presumed innocent person must have his freedom in the form of bail to enable him to establish his innocence at the trial - In Savitri Agarwal and Ors. vs. State of Maharashtra Ors. [ 2009 (7) TMI 1383 - SUPREME COURT] , the Hon'ble Supreme Court has held that while exercising the power under sub-section 1 of Section 438 Cr.P.C., the Court must be satisfied that the applicant invoking the provision has reasons to believe that he is likely to be arrested for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official guidelines to take part in a religious ceremony in Ayodhya along with dozens of people. 4. The error in the said report was corrected as soon it became known of the applicant and the incorrect version was deleted. FIR was registered on 01.04.2020. The instant application has been filed seeking anticipatory bail of the applicant as an apprehension of arrest in connection of the said FIR. 5. Shri I.B. Singh, learned Senior Advocate has submitted that the said FIR is nothing but an attempt to muzzle free speech and it is also submitted that the report in the said Magazine and Tweeter handle by the applicant is based on statements of facts which was also covered by various other news publications such as Deccan Herald, The Print, NDTV and Economic Times. The said report has never been denied by the Government of U.P. In such circumstances, the learned Senior Advocate has submitted that the applicant has not committed any offence as alleged in the FIR. The FIR is frivolous, malicious and motivated in nature. Furthermore, one small error in the report wherein the statement was wrongly attributed to the Chief Minister of U.P. was corrected as soon it became known and even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIR No. 246 of 2020. The applicant replied to the said second notice on 28.04.2020 providing a response to all questions and requesting the police to provide copy of FIR and relevant underlying documents as required. 10. Learned Senior Advocate has submitted that the applicant has very reasonable apprehension of being arrested in pursuance of registration of FIR No. 246 of 2020 in which the applicant has been charged with non-bailable offence. Learned Senior Advocate has further submitted that while exercising its discretion under Section 438 Cr.P.C., a Court may, inter alia, take into consideration the nature and gravity of the accusation and the role of the accused. He has relied on a judgment rendered by Hon'ble Supreme Court of India in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra - (2011) 1 SCC 694 to support his argument. 11. Learned Senior Advocate has further submitted that the liberty of an individual cannot be in the thrall of such frivolous invocation of non-bailable provisions. To strengthen his contention/submission, learned Senior Advocate has relied on Para - 112(x) of Siddharam Satlingappa's case (supra). 12. Learned Senior Advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and a person seeking anticipatory bail is a free person entitled to presumption of innocence. 17. It is also submitted that a Constitution Bench of Hon'ble Supreme Court in the case of Sushila Aggarwal v. State (NCT of Delhi) - 2020 SCC Online SC 98, has held that while holding that protection under Section 438 of Cr.P.C., should ordinarily be without any restriction as to time and that it should continue till the end of trial, reiterated the importance of the protection of individual liberty against arbitrary, frivolous and malicious arrests by recalling that it is such arrests which lead to the enactment of the protection under Section 438 of Cr.P.C. 18. Learned Senior Advocate has further submitted that, therefore, filing the charge-sheet by the police as well as the cognizance being taken by the Court does not bar for grant of anticipatory bail to the accused-applicant in the instant case. 19. Per contra, Shri V.K. Shahi, learned Additional Advocate General and Shri Jayant Singh Tomar, learned Additional Government Advocate have vehemently opposed the submissions made by learned Senior Advocate appearing for the accused-applicant and submitted that no case is mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Additional Advocate General has submitted that in view of the facts and circumstances, the accused-applicant is not entitled for any relief by this Court. The anticipatory bail application of the applicant is devoid of merits and is based on misconceived facts and liable to be rejected. 25. I have heard Shri I.B. Singh, learned Senior Advocate assisted by Ms. Surangama Sharma, learned counsel appearing for the applicant; Shri V.K. Shahi, learned Additional Advocate General and Shri Jayant Singh Tomar, learned Additional Government Advocate appearing for respondent-State. 26. The concept of anticipatory bail was introduced in Cr.P.C. by 1973 amendment. 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 one of 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. Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bailable offence and such believe must be founded for reasonable grounds. 34. Section 438 Cr.P.C. contemplates an application to be made by person apprehending arrest of an accusation of having committed a non-bailable offence. It is indicative of the fact that the application for anticipatory bail is pivoted on an apprehension of arrest which invites exercise of power under Section 438 of Cr.P.C. The expression reason to believe or reasonable apprehension of arrest, a term substitute for each other is the governing factor to let off a person on anticipatory bail where submission of charge-sheet, is an idle parade. It is settled law now that the submission of the charge-sheet is not a lock gate for the applicant to be enlarged on anticipatory bail but it ensures generation of apprehension of arrest. Reason to believe or apprehension of arrest for having committed a non-bailable offence does not grant any licence to any wrong-doer to be enlarged on anticipatory bail. 35. According to the rule of construction, the expression reason to believe should be construed with the aim, object and scheme of Section 438 Cr.P.C. The inflammatory allegations having their pedestal on fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, summoning the accused under Section 204 Cr.P.C. through warrant; (d) while the Magistrate committing the Sessions case to the Court of Session under Section 209 Cr.P.C. and remanding the accused to custody; (e) during the enquiry or trial, if the Court, on the basis of the evidence let in, impleads a person as an accused under Section 319 Cr.P.C. for the purpose of summoning and detaining him under Section 319 (2) and (3) Cr.P.C. 39. The above five contingencies involve different stages. Once the person accused of is released on anticipatory bail or on bail at one stage, the operation of the bail continues till the conclusion of trial. 40. The grounds on which apprehension of arrest is based must be capable of being examined by the Court objectively. Then alone the Court can determine whether the applicant has reason to believe that he would be arrested. Therefore, Section 438 Cr.P.C. cannot be invoked, unless there is some material on the basis of which the Court can come to the conclusion that the apprehension of the petitioner for the arrest is genuine. 41. In the case of Gurbaksh Singh Sibbia (supra), the Hon'ble Supreme Court went to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge sheet is filed and the cognizance is taken by the Magistrate and the process is issued, the apprehension of arrest will become more stronger. At least, during the course of investigation it could be said that the apprehension of arrest is not reasonable, since under Section 41(A) Cr.P.C. the arrest is not mandatory. The reading of Section 41 Cr.P.C. would make clear that the arrest need not be resorted to in all cases automatically. The police has got a large discretion to arrest or not to arrest a person. 47. Therefore, it can be said that during the investigation, when the police officer has decided not to arrest, there is no apprehension of arrest. But, after filing of the charge sheet and that too once the warrant/summon is issued to appear the accused, then there would certainly be an apprehension of arrest. 48. In the case of Directorate of Enforcement v. Deepak Mahajan - 1994 SCC (Crl.) 785, the Hon'ble Supreme Court has held as follows:- Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the investigating agency in the investigation via Email dated 13.04.2020 to the relevant police officer, however also shown his inability to comply with the direction to appear at Police Station Ayodhya on 14.04.2020 in view of lockdown due to Covid-19. 52. The applicant has stated on the affidavit that there are very reasonable and sufficient apprehension of being arrested for non-bailable offence. In the affidavit accompanying accompanying the bail application, it has been contended that the apprehension of the applicant is further fortified by the conduct of Uttar Pradesh Police, which has already sent two notices under Section 41(A) of Cr.P.C. in relation to FIR No. 246 of 2020. 53. Learned Senior Advocate appearing for the accused-applicant has submitted that the applicant is willing to cooperate with the investigation as well as the entire proceeding of the trial in the instant case. It is also submitted that there is no possibility of fleeing away as he has deep route in the society, is a permanent resident of Delhi and is a reputed journalist. It is also submitted that the applicant undertakes that he shall not misuse any condition imposed by this Court while grant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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