Allahabad High Court has said that arrest should be made only if it is necessary for interrogation in police custody for investigation. The court said that this should be the last option and unnecessary arrest is a violation of human rights.
A Single Bench of Justice Ajit Singh passed this order while hearing a Criminal Misc Anticipatory Bail Application under Sections 438 CrPC filed by Rahul Gandhi.
The anticipatory bail application has been filed on behalf of the applicant with a prayer to release him on anticipatory bail in Case under Sections 498-A, 323, 504, 406, 506 IPC read with Section 3/4 of Dowry Prohibition Act, 1961, Police Station Mahila Police Station, district Gautam Buddh Nagar, during pendency of investigation/trial.
The first information report of this incident was lodged by the complainant/victim herself against two named persons including the applicant.
It was alleged in the first information report that the marriage of the complainant was solemnized with the applicant on June 16, 2016.
It was also alleged that her parents had given sufficient dowry in the said marriage. It was also alleged that after marriage, the applicant and his family members have demanded Rs.1 crore as additional dowry.
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It was also alleged that applicant and his family members were continuously humiliating and torturing the complainant.
Counsel for the applicant submitted that the applicant is innocent and has falsely been implicated in the case. He further submitted that a first information report has been lodged with an object to injure the reputation of the applicant by having him so arrested.
He also submitted that no proceedings under Sections 82 and 83 CrPC have been initiated against the applicant.
Counsel for the applicant said that the charge sheet has not been filed till date. He submitted that the applicant undertakes to cooperate during the investigation and he will not tamper with the evidence in any way.
He submitted that Shashi Kiran Gandhi has been granted protection by another Bench of the Court order dated December 20, 2021, photocopy whereof supplied by counsel for the applicant has been perused by the Court, is taken on record and role assigned to applicant is similar to role of co-accused. He claims parity, the court noted.
After considering the rival submissions, the Court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend them. After lodging an FIR, the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged.
The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are a gross violation of human rights.
The Court further held that,
In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief sources of corruption in the police.
The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made.
“Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicants, considering that accusation might have been lodged with the object of injuring the reputation of the applicant by having him so arrested, considering that aforesaid co-accused has been granted protection by another Bench of the Court order dated December 20, 2021, considering the judgment passed by Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and in the case of Satendra Kumar Antil vs. Central Bureau of Investigation passed in Special Leave to Appeal (Criminal). In the event of arrest, the applicant shall be released on anticipatory bail”,
-the court observed.
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The Court ordered that,
Let the applicant Rahul Gandhi involved in the crime be released on anticipatory bail on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the trial court/
Investigating Officer concerned with the following conditions:-
1.The applicant shall, at the time of execution of the bond, furnish his address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.
2. The applicant shall not leave the country during the currency of trial/ investigation by police without prior permission from the concerned trial Court.
3. The applicant shall not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the Investigating Officer of the police;
4. The applicant shall surrender their passport, if any, to the concerned Court/ Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passport, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.
5. 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;
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6. The applicant shall maintain law and order.
7. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of 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.
8. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government
Advocate/informant/complainant can file bail cancellation application.
9. 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 CrPC. 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.