Background
The petitioner, Prateek Jain, filed the present anticipatory bail application with a prayer to grant anticipatory bail in Case Crime No. 1906 of 2020 under Section 420, 467, 468, 471, 506, 406 IPC, Police Station-Sihani Gate, District- Ghaziabad. In this case, it was not thought to be necessary to grant further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment).
It was alleged that the applicant, along with other co-accused persons was the Director of a builder company. He applied for a flat being constructed by the company and paid Rs. 3,25,000/- by means of a cheque as the booking amount. Thereafter, he took a loan and paid a total amount of Rs. 27,27,875/-. He has not been given possession of the flat.
Arguments Before the Court
Learned counsel for the applicant submitted that he was not the director of the builder company in a dispute. He was only related to the other directors and hence, he has been falsely implicated in this case. He contended that the present case arose because of demonetization and the slump caused in the business of the real estate. He further submitted that the informant has a remedy under the Real Estate (Regulation and Development) Act, 2016.
Learned A.G.A. opposed the prayer for anticipatory bail of the applicant. He submitted that in view of the seriousness of the allegations made against the applicant, she is not entitled to grant anticipatory bail. He further submitted that the apprehension of the applicant was not founded on any material on record and that anticipatory bail cannot be granted only on the basis of imaginary fear.
Court’s Observation
On account of bad connectivity during the hearing through video conferencing, the Court could not gather the complete submissions raised at the Bar. However, the Court said that the hearing of the current Bail application did not deserve to be adjourned in the larger interest of justice, keeping in view, the mandate of Section 438(5) Cr.P.C., to dispose of anticipatory bail application within 30 days and also considering the spread of the second wave of novel coronavirus. The Court contended that due to lack of proper technical support the cause of justice cannot be allowed to suffer.
After considering the rival contentions raised by the learned counsels for the parties, the Court considered the Section 438 Cr.P.C, U.P. Amendment of 2019 and made certain findings related to it. The Court further referred to some cases of the Hon’ble Supreme Court regarding the grant of anticipatory bail. The Court said that the 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 circumstances involved therein. The Court interpreted that the law of anticipatory bail was founded only on the apprehension of the arrest. The apprehension may be of pre-recording or post-recording stage of the FIR. However, the pre-requisite condition of apprehension of arrest was the survival of the accused. The Court further referred to Article 21 of the Constitution of India and interpreted the importance of the Right to Life. The Court said that the apprehension of death on account of reasons like the present pandemic of novel coronavirus can certainly be held to be a ground for grant of anticipatory bail to an accused.
The Court further referred to the current situation of the second wave of novel coronavirus and explained that how if the appellant was arrested and subjected to the subsequent procedures of detention in lock-up, production before the Magistrate, grant or rejection of bail or incarceration in jail, etc., the apprehension to his life would certainly arise.
The Court also referred to the case of the Apex Court of Kerala Union of Working Journalists vs. Union of India and Others in which it was had held that the fundamental right to life unconditionally embraces even an undertrial. The Court observed that passing orders which will result in over-crowding of jails would be very wrong in the current times.
The Court said that the counsel for the State has not given any assurance of protection of the accused persons, who are in jail and may be sent to jail, regarding their protection from contracting the infection of novel coronavirus. The Court held that keeping in view the inadequate medical facilities for treating the large number of persons getting infected day by day, the common accused cannot be left unprotected from the threat to his life on account of his arrest by police or surrender before the Court as per the normal procedure applicable to accused persons in normal times.
The Court further held that the apprehension of an accused being infected with novel coronavirus before and after his arrest and the possibility of his spreading the same while coming into contact with the police, Court and jail personnel or vice-versa can be considered to be a valid ground for grant of anticipatory bail to an accused.
The Court further said that the informant/ complainant may take objection to the relief being granted to the applicant and may be dissatisfied with the observations made in this judgment in favour of the accused. However, they should not lose sight of the fact that only when the accused would be alive, he would be subjected to the normal procedure of law of arrest, bail and trial.
The Court also said that the Election Commission, the Higher Courts and the Government failed to fathom the disastrous consequences of permitting the elections in few States and the Panchayat elections in the State of Uttar Pradesh.
Court’s Decision
In view of the aforesaid 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, the Court allowed the present anticipatory bail application. The Court directed that the applicant, in case of his arrest, shall be enlarged on anticipatory bail for the limited period, till 03 of January 2022 on certain special conditions. Furthermore, the Court said that the normal grounds, settled for the grant of anticipatory bail, have not been considered by it and it would be open for the applicant to approach this Court again, if so advised, in changed circumstances.
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