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2020 (5) TMI 735 - HC - Indian LawsGrant of Anticipatory Bail - it is alleged that the applicant had made a tweet on website Twitter.com which was allegedly defamatory towards the Chief Minister of Uttar Pradesh - HELD THAT - 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. From the collection and scheme of Chapter XXXIII and Section 438 Cr.P.C. it becomes explicitly clear that the legislature intended to bring anticipatory bail within the category of bail and not to treat it as something different from bail - The bail means as per Wharton s Law Lexicon to set at liberty a person 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 committing non-bailable offence and such believe must be founded for reasonable grounds. 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. - there are merit in the argument advanced by learned Additional Advocate General. The instant anticipatory bail application under Section 438 Cr.P.C. is allowed.
Issues Involved:
1. Application for anticipatory bail under Section 438 Cr.P.C. 2. Allegations under Sections 66D & 67 of Information Technology Act 2000, Sections 188 & 505(2) of IPC, Section 54 of Disaster Management Act 2005, and Section 3 of Epidemic Diseases Act 1897. 3. Arguments regarding the nature of the FIR and the applicant's intent. 4. Considerations of the applicant's risk of absconding and tampering with evidence. 5. Legal precedents and principles governing anticipatory bail. Issue-Wise Detailed Analysis: 1. Application for Anticipatory Bail under Section 438 Cr.P.C. The applicant filed for anticipatory bail under Section 438 Cr.P.C., expressing apprehension of arrest due to an FIR lodged against him. The court noted that anticipatory bail is designed to protect an individual's liberty against unnecessary jeopardy and is applicable when there is a "reasonable apprehension" of arrest for a non-bailable offense. 2. Allegations under Various Sections The FIR accused the applicant of offenses under Sections 66D & 67 of the Information Technology Act 2000, Sections 188 & 505(2) of IPC, Section 54 of the Disaster Management Act 2005, and Section 3 of the Epidemic Diseases Act 1897. The allegations stemmed from a tweet and an article published by the applicant, which were claimed to be defamatory towards the Chief Minister of Uttar Pradesh and potentially disruptive to communal harmony. 3. Arguments Regarding the Nature of the FIR and the Applicant's Intent The applicant's counsel argued that the FIR was an attempt to muzzle free speech and that the article and tweets were based on factual statements covered by various other news publications. They contended that the FIR was frivolous, malicious, and motivated, and that any factual inaccuracies were promptly corrected. The applicant's counsel further argued that the FIR was filed to intimidate the applicant and "The Wire" into deleting the article. 4. Considerations of the Applicant's Risk of Absconding and Tampering with Evidence The applicant's counsel emphasized that the applicant is a permanent resident of Delhi with deep roots in the community and has shown willingness to cooperate with the investigation. They argued that there was no risk of tampering with evidence or fleeing, as the applicant is a reputed journalist. Conversely, the State argued that the applicant held an American passport and could potentially abscond, thus opposing the bail application. 5. Legal Precedents and Principles Governing Anticipatory Bail The court referred to several legal precedents, including Siddharam Satlingappa Mhetre v. State of Maharashtra, Gurbaksh Singh Sibbia v. State of Punjab, and Sushila Aggarwal v. State (NCT of Delhi), which emphasize the protection of individual liberty and the conditions under which anticipatory bail can be granted. The court highlighted that anticipatory bail should be granted when there is a reasonable apprehension of arrest and that the submission of a charge-sheet does not preclude the granting of anticipatory bail. Judgment: The court allowed the anticipatory bail application, directing that in the event of arrest, the applicant be released on bail with conditions, including surrendering his passport and not leaving India without permission. The court emphasized that these observations were only for the disposal of the anticipatory bail application and would not affect the trial proceedings.
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