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TMI Blog2020 (5) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... was lodged on the report published by "The Wire" on 31.03.2020 titled as "Covid-19 Cases Spike in Nizzamuddin Nehru Stadium in Delhi to Become Quarantine Centre", which was also tweeted by the applicant on 31.03.2020 and 01.04.2020. Relevant portion of the tweet is reproduced hereinbelow:- "On the day the Tablighi Jamaat event was held. Yogi Adityanath insisted that a large fair planned for Ayodhya on the occasion of Ram Navami from March 25 to April 2 would proceed as usual while Acharya Paramhans said that Lord Ram would protect devotees from the coronavirus'. One day after Modi announced the "curfew like" national lockdown on March 24, Adityanath violated the 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 sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the border between the NCT of Delhi and the State of Uttar Pradesh is closed for ordinary traffic, it would be impossible for the applicant to comply with the said notice. The applicant gave reply to the said notice through Email dated 13.04.2020 to the relevant officials of Uttar Pradesh police. In his response, the applicant clearly expressed his willingness to cooperate with the respondents in the investigation and highlighted his inability to comply with the direction to appear at P.S. Ayodhya on 14.04.2020 in view of lockdown. 9. It is further submitted that the police has sent a second notice under Section 41(A) of Cr.P.C., on 26.04.2020 relating to 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e police has filed charge-sheet. The Court below has taken cognizance on the charge-sheet filed by the investigating officer, but inspite of filing the charge-sheet and the cognizance being taken, the present applicant has a strong apprehension of arrest by the investigating agency. 16. During the argument, learned counsel has referred a judgment of the Hon'ble Supreme Court in the case of Bhadresh Bipinbhai Sheth v. State of Gujarat - (2016) 1 SCC 152 and submitted that the Hon'ble Supreme Court has held that there is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serious objection that there is every likelihood that the accused-applicant will abscond and intimidate the witnesses and he may evade trial too. The accused-applicant is holding passport of U.S.A., and is an American citizen, and is residing in India since 1995. Therefore, the applicant can flee away from the country. 23. Learned Additional Advocate General has submitted that since the police has already completed the investigation and charge-sheet has been filed and the Court concerned has already taken congnizance, under law, there is no apprehension of arrest to the applicant-accused by the investigating agency. 24. Learned 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 33. In Savitri Agarwal and Ors. vs. State of Maharashtra & Ors. -(2009) 8 SCC 325, 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 committing non-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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration and weight, irrespective of the state of the case. 38. When apprehension of arrest arises? The apprehension of arrest for a non-bailable offence, one can have at different stages, namely:- (a) during the period of investigation by the police after registration of F.I.R. and before filing of the final report under Section 173 Cr.P.C.; (b) during further investigation under Section 173(8), Cr.P.C. even after filing of the charge sheet under Section 173 Cr.P.C.; (c) after taking cognizance by the Magistrate, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused. In a warrant case, he may issue warrant directing the police to arrest the accused to produce before him at a certain time. Though the Magistrate invariably issues summons even in a warrant case under Section 204, Cr.P.C. after taking cognizance, in a police case, when the police intimated to the Court that the accused person was not arrested, since he was absconding, the Magistrate issues warrant directing the police to apprehend the absconding accused.. 46. In fact, only when the charge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anying the bail application that "on 10.04.2020, pursuant to FIR No. 246 of 2020, some policemen of U.P. came to the applicant's residence and served upon his wife a written notice under Section 41(A) of Cr.P.C. directing the applicant to appear at Police Station Ayodhya at 10 AM on 14.04.2020 knowing fully well that given the current lockdown.". It is also contended in the affidavit accompanying the bail application that the applicant has expressed his willingness to cooperate with 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. 4. In case, the applicant misuses the liberty of bail, the trial Court concerned may take appropriate action in accordance with law. 5. 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. 6. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 7. The computer generated copy of such order shall be self attested by the counsel or the party concerned. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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