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2020 DIGILAW 359 (UTT)

Sushila Devi v. State Of Uttarakhand

2020-10-01

RAVINDRA MAITHANI

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JUDGMENT Ravindra Maithani, J. - Applicant Smt. Sushila Devi filed an application for anticipatory bail in FIR No. 72 of 2018, under Section 420 IPC, Police Station Ranipokhri, District Dehradun. The application was filed on 12th October, 2018. The matter was listed on various occasions. On 15th November, 2018, the Court ordered that notice be issued to the respondent no.3 returnable within a period of three weeks and thereafter passed the following orders: "Considering the submission of learned counsel for the parties and after going through the papers available on record, it is directed that the applicant shall join the investigation and shall fully cooperate with the investigating agency. In the event of arrest with regard to the aforesaid FIR, applicant shall be released on bail on her furnishing a personal bond in the sum of Rs. 50,000/- two sureties in the like amount to the satisfaction of the arresting officer." 2. The matter was again listed because notices were issued to the respondent no.3. Now, the State has filed objections. The objection relates to the maintainability of the anticipatory bail application, a thing which is a history now, because the provision is contained in the statute book. State also informed that charge-sheet has been submitted in the case. 3. The only point, which remains for consideration is, as to whether, the order dated 15th November, 2018, as quoted hereinabove is an ad-interim anticipatory bail order or is it anticipatory bail order? It is so, because in view of the settled proposition of law as discussed hereinafter, anticipatory bail order shall remain in force till the trial unless the tenure of anticipatory bail is limited by the Court under any special and peculiar feature. 4. On behalf of the applicant, it is submitted that the order dated 15th November, 2018 passed by the Court, is a final order of anticipatory bail because it is argued that: (i) The order dated 15th November, 2018 was passed after giving opportunity to the prosecution and it was passed after 34 days of the anticipatory bail application having been filed. (ii) By virtue of order dated 15th November, 2018, the main relief sought by the applicant has been granted. (ii) By virtue of order dated 15th November, 2018, the main relief sought by the applicant has been granted. (iii) The language of the order dated 15th November, 2018, clearly reflects that it is final order because it gives direction as to what will be done in the event of arrest of the applicant in connection with the FIR in question. (iv) As directed, in the case of Gurbaksh Singh Sibbia and others vs State Of Punjab, (1980) 2 SCC 565 , the order dated 15th November, 2018 has been passed after affording an opportunity of hearing to the prosecution. (v) The order dated 15th November, 2018, also contains the following wordings: - "It is made clear that if applicant misuses her liberty, does not cooperate with investigating agency, the investigating agency shall be at liberty to move this Court for cancellation of anticipatory bail." 5. On the basis of which, it is argued that there is no allegation of misusing of anticipatory bail by the applicant and no application has been filed for cancellation of the anticipatory bail by the Police. Even otherwise, it is argued that the correctness of this order cannot be considered by this Court. In this context, learned counsel for the applicant relied on the following proposition of law as laid down by the Hon'ble Supreme Court in the case of Sushila Aggarwal vs. State (NCT Of Delhi),2020 SCCOnlineSC 98. " Para 140- This Court, in the light of above discussions in the two judgments, and in the light of answers to the reference, hereby clarifies that the following need to be kept in mind dealing with applications under Section 438, CR.P.C.;....................................................... ....................................................... (9) it is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, under Section 439 (2) to arrest the accused, in the violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation, or inducement to witnesses with a view to influence outcome to the investigation or trial etc. ....................................................... .......................................................... 11. the correctness of an order, granting the anticipatory bail can be considered by the appellate or superior court at the behest of the State or the investigating agency........................................................". 6. On behalf of the State, it is argued that since charge-sheet has been filed, therefore, the anticipatory bail application becomes infructuous. ....................................................... .......................................................... 11. the correctness of an order, granting the anticipatory bail can be considered by the appellate or superior court at the behest of the State or the investigating agency........................................................". 6. On behalf of the State, it is argued that since charge-sheet has been filed, therefore, the anticipatory bail application becomes infructuous. It has been argued that the order dated 15th November, 2018, does not direct that it shall remain in force till the conclusion of the trial 7. It is a pure question of law. The anticipatory bail application in the instant case was filed on 12th October, 2018. It was listed thereafter on some other occasions. On 13th November, 2018, at the request of learned State counsel, the matter was adjourned and on that date itself, on behalf of the State an assurance was given to the Court that till the next date, the applicant will not be arrested and it is, thereafter, on 15th November, 2018, notices were issued to the respondent no.3, the informant and an order was passed, as quoted hereinabove. The chapter did not close on it. On 15th November, 2018, this Court did not conclude the proceedings. 8. The law is settled that as an when the anticipatory bail application is filed, the court may give time to the prosecution for objections and list it thereafter, or the court may while granting time to the prosecution, grant ad-interim protection to the applicant. In the case of Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors, (2011) 1 SCC 694 , in para 94, the Hon'ble Court observed as hereunder: "94- The proper course of action ought to be that after evaluating the averments and the accusation available on the record, if the court is inclined to grant anticipatory bail then an interim bail is granted and notice be issued to the public prosecutor. After hearing the public prosecutor, the court may either reject the bail application or confirm the initial order of granting bail........The bail granted by the court should ordinarily be continued till the trial of the case." (emphasis supplied) In para 98 of Mhertre (supra) case, the Hon'ble Supreme Court further discussed:- "The Court which granted the bail has the right to cancel the bail, according to the provisions of general clauses Act, but ordinarily after hearing the public prosecutor when the bail order is confirmed then the benefit to grant of bail should continue till the end of trial of that case......................................................... (emphasis supplied) 9. In the case of Sushila (supra), the Hon'ble Supreme Court approved the concept of limited interim anticipatory bail. In para 133- (b), the Hon'ble Court observed as hereunder: "The court before which an application under Section 438, is filed, depending on the serious of threat of arrest, as a measure of caution, may issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail" (emphasis supplied) 10. In fact, in the case of Sushila (supra), the judgment in the case of Gurbaksh Singh (supra) has been referred to and quoted also. In para 42 in the Judgment of Gurbaksh Singh (supra) the Hon'ble Court, observed: "Can an order of bail be passed under section without notice to the public prosecutor? In can be. But notice should be issued to the public prosecutor or the Government advocate forthwith and the questions of bail should be re-examined in the light of perspective contention of the parties. The ad-interim order too must confirm to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage." (emphasis supplied) 11. The above legal position categorically establishes that the court may issue ad-interim protection in terms of interim anticipatory bail, but it required to be confirmed after hearing rival submissions. Adinterim protection may be in varied terms. It may be in terms of anticipatory bail order also, but if it is ad-interim, it remains ad-interim. As stated, it requires confirmation after hearing the parties. 12. An argument has been advanced that the relief sought has been granted by virtue of order dated 15th November, 2018. Adinterim protection may be in varied terms. It may be in terms of anticipatory bail order also, but if it is ad-interim, it remains ad-interim. As stated, it requires confirmation after hearing the parties. 12. An argument has been advanced that the relief sought has been granted by virtue of order dated 15th November, 2018. It makes no difference, if it is for a limited time, if it is ad-interim, because ultimately, if after hearing parties, it is confirmed, it becomes final order and if it is not confirmed, it goes other way. It is also true that the language of the order dated 15.11.2018 is akin to the language of para 142 in the judgment of Mhatre (supra) case, but by virtue of it also, the order dated 15th November, 2018 does not become a final anticipatory bail order. It's nature is being examined. 13. On 15th November, 2018, this Court did not pass final anticipatory bail order because on that date, notice was issued to the informant and three weeks' time was given for counter affidavit. In fact, the State had also not filed counter affidavit till then, though it was represented. The nature of this order dated 15th November, 2018, is adinterim only. It is not a final order. After objections having been filed and parties heard, the final order would have been passed, but it has not been done as yet. 14. Now, charge-sheet has been filed. Had final anticipatory bail order been passed, it would have its effect till the trial, but as stated, in the instant case, the anticipatory bail order dated 15th November, 2018, is ad-interim only. It cannot survive. In fact, it would have survived, till objections are filed and the matter is heard finally. But that stage has never come. Now charge-sheet is filed. The matter is pending before the court below. Therefore, this anticipatory bail application now definitely becomes infructuous. The applicant has to approach court concerned to seek bail in the instant case. 15. Accordingly, the anticipatory bail application is dismissed as infructuous.