# Sagynbek Toktobolotov & Ors v. State of U.P

- **Citation:** (2020) 6 ILRA 1228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-02
- **Case number:** Bail No. 2898 of 2020
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sagynbek-toktobolotov-ors-v-state-of-u-p-45764
- **Pages:** 12

## Headnote

(A) Criminal law - Indian Penal Code,
1860 - Sections 188 , Section 3 of
Epidemic Disease Act, 1897, Section
12(3) of the Passport Act, 1967 and
Sections
3(2)
and
Section
3
(3)
Passports (Entry into India) Act, 1920
and Section 14/14-C of the Foreigners
Act, 1946 and Section 51 of the Disaster
Management Act, 2005

(B) Constitution of India - Article 21 -
heart and soul of the fundamental rights
as
enshrined
in
Part
III
of
the
Constitution - ''personal' before the word
''liberty' used in Article 21 - it is an antithesis of physical restrain or coercion -
basic right of an individual to be free
from restrictions or encroachment on his
person
 - unless and until extreme
circumstances are pointed out, it cannot
be considered that the parameters for
considering a bail application for a
national or a foreigner would be on a
different footing before the Court of law
- an application for bail cannot be
6 All. Sagynbek Toktobolotov & Ors. Vs. State of U.P. 1229
rejected
solely
on
the
ground
the
applicants are foreign nationals. Para -
22 ,23,26,27

(C) Criminal jurisprudence - Object of
bail is neither punitive nor preventive -
Deprivation of liberty is considered a
punishment unless it is requires to
ensure that an accused person will stand
trial when called upon - bail is the Rule
and committal to the Jail is an exception
- Speedy justice is also a fundamental
right which has been recognized by the
Apex Court -flowing from Article 21 of
the Constitution of India. Para - 28

Applicants are foreign nationals - citizens of
Kyrgyzstan - in Jail - Administration imposed
section 144 Cr.P.C - widely publicised amongst
the public - Information that in a Markaz
Mosque situated at District Lucknow - 6
foreign nationals who had entered India on a
tourist Visa were being given shelter in the
said mosque by its Manager -- foreign
nationals attended the religious congregation
at Nizamuddin in New Delhi - thereafter had
come to Lucknow - without getting their
medical examination done, they were residing
in the Markaz Mosque.

HELD:- Considering the rival submissions,
material available on record as well as
balancing the apprehensions of both sides, the
nature of accusations against the applicants,
severity of punishment if the applicants are
convicted and also to ensure their presence at
trial, hence, this Court at this stage, without
expressing any opinion on merits, is of the
considered view that the applicants are
entitled to be enlarged on bail. Para - 36

Bail Application allowed.(E-7)

List of cases cited:-

## Text

1228 INDIAN LAW REPORTS ALLAHABAD SERIES
that the accused is not guilty of the
alleged offence. The reasonable belief
contemplated in the provision requires
existence of such facts and circumstances
as are sufficient in themselves to justify
satisfaction that the accused is not guilty
of the alleged offence. A similar view has
been taken by the Apex Court in the case
of State of Karela Vs. Rajesh reported in
(2020) SCC Online SC 81.

26. Being armed with Section 37 of
the Act of 1985, the law as laid down by the
Apex Court in the case of Ram Samujh
(supra) and Durand Didier (supra), what
this Court finds is that prior to grant of bail
under the Act of 1985 the Court should be
satisfied that there are reasonable grounds
for believing that the accused is not guilty
of such offence and that he is not likely to
commit any offence while on bail. As per
the discussions made above, it is apparent
that only a technical plea has been raised on
behalf of the applicant to somehow or the
other make the seizure/recovery of drugs
and his arrest suspicious but the Court is
satisfied that the applicant is guilty of the
offence. In this view of the matter also the
Court does not deem the instant case as fit
for grant of bail.

27. Taking into consideration the
aforesaid discussions, the Court is of the
view that there has been compliance of the
provisions of Section 50 (1) of the Act of
1985, the sample was duly taken, lack of
independent witnesses would not vitiate the
recovery and arrest of the applicant and
merely because the applicant has no
criminal history, would not entitle him
automatically for grant of bail.

28. Accordingly, the bail application is
rejected. However, it is provided that none
of the observations made above would be
considered by the trial court in its trial
against the applicant and the trial would
proceed in accordance with law.
----------
(2020)06ILR A1228
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.06.2020

BEFORE

THE HON'BLE JASPREET SINGH, J.

Bail No. 2898 of 2020

Sagynbek Toktobolotov & Ors.
 ...Applicants
Versus
State of U.P. ...Opposite Party

Counsel for the Applicants:
Pranshu Agrawal, Sufiyan Mohammad

Counsel for the Opposite Parties:
G.A.

(A) Criminal law - Indian Penal Code,
1860 - Sections 188 , Section 3 of
Epidemic Disease Act, 1897, Section
12(3) of the Passport Act, 1967 and
Sections
3(2)
and
Section
3
(3)
Passports (Entry into India) Act, 1920
and Section 14/14-C of the Foreigners
Act, 1946 and Section 51 of the Disaster
Management Act, 2005

(B) Constitution of India - Article 21 -
heart and soul of the fundamental rights
as
enshrined
in
Part
III
of
the
Constitution - ''personal' before the word
''liberty' used in Article 21 - it is an antithesis of physical restrain or coercion -
basic right of an individual to be free
from restrictions or encroachment on his
person
 - unless and until extreme
circumstances are pointed out, it cannot
be considered that the parameters for
considering a bail application for a
national or a foreigner would be on a
different footing before the Court of law
- an application for bail cannot be
6 All. Sagynbek Toktobolotov & Ors. Vs. State of U.P. 1229
rejected
solely
on
the
ground
the
applicants are foreign nationals. Para -
22 ,23,26,27

(C) Criminal jurisprudence - Object of
bail is neither punitive nor preventive -
Deprivation of liberty is considered a
punishment unless it is requires to
ensure that an accused person will stand
trial when called upon - bail is the Rule
and committal to the Jail is an exception
- Speedy justice is also a fundamental
right which has been recognized by the
Apex Court -flowing from Article 21 of
the Constitution of India. Para - 28

Applicants are foreign nationals - citizens of
Kyrgyzstan - in Jail - Administration imposed
section 144 Cr.P.C - widely publicised amongst
the public - Information that in a Markaz
Mosque situated at District Lucknow - 6
foreign nationals who had entered India on a
tourist Visa were being given shelter in the
said mosque by its Manager -- foreign
nationals attended the religious congregation
at Nizamuddin in New Delhi - thereafter had
come to Lucknow - without getting their
medical examination done, they were residing
in the Markaz Mosque.

HELD:- Considering the rival submissions,
material available on record as well as
balancing the apprehensions of both sides, the
nature of accusations against the applicants,
severity of punishment if the applicants are
convicted and also to ensure their presence at
trial, hence, this Court at this stage, without
expressing any opinion on merits, is of the
considered view that the applicants are
entitled to be enlarged on bail. Para - 36

Bail Application allowed.(E-7)

List of cases cited:-

1. Anil Kumar Yadav Vs St. (NCT of Delhi) &
anr.,(2018) 12 SCC 129

2. St. of U.P. Vs Amarmani Tripathi, (2005) 8
SCC 21 : 2005 SCC (Cri) 1960 (2)

3. Prahlad Singh Bhati Vs St. (NCT of Delhi),
(2001) 4 SCC 280 : 2001 SCC (Cri) 674
4. Gurcharan Singh Vs St. (NCT of Delhi),
(1978) 1 SCC 118 : 1978 SCC (Cri) 41

5. Kalyan Chandra Sarkar Vs Rajesh Ranjan,
(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] :
(SCC pp. 535-36, para 11)

6. Ram Govind Upadhyay Vs Sudarshan Singh,
(2002) 3 SCC 598 : 2002 SCC (Cri) 688

7. Puran Vs. Rambilas [Puran Vs Rambilas,
(2001) 6 SCC 338 : 2001 SCC (Cri) 1124

8. State v. Jagjit Singh, (1962) 3 SCR 622 :
AIR 1962 SC 253 : (1962) 1 Cri LJ 215

9. Gurcharan Singh v. State (NCT of Delhi),
(1978) 1 SCC 118 : 1978 SCC (Cri) 41

10. Jayendra Saraswathi Swamigal v. State of
T.N., (2005) 2 SCC 13 : 2005 SCC (Cri) 481

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The Court has heard Sri
Pranshu Agarwal, learned counsel for
the applicant and Shri J.S. Tomar,
learned AGA via video conference.

2.

On
application
for
Amendment in the memo of Bail
Application

3. At the outset, it will be
relevant to mention that the learned
counsel for the applicants had moved
an application for amendment in the
bail application and had sought to add
two
more
Sections,
in
the
bail
application, with which the applicants
have been challaned and remanded.

4. The copy of the amendment
application was served on the learned
A.G.A.
on
30.05.2020
who
has
reecieved his instructions and all
necessary documents in respect of the
above bail application.
1230 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The learned A.G.A. has filed
his written instructions, as well as the
copyof the case diary, which is taken
on record.

6. Considering the amendment
application, it is not disputed by the
learned A.G.A. that two Sections
namely Section 3 (3) of Passports
(Entry into India) Act, 1920 and
Section 51 of Diasaster Management
Act, 2005, which as per the learned
counsel
for
the
applicants
were
inadvertently left out, are also pressed
against the applicants, hence the
application
for
amendment
shall
stands allowed.

7. The bail application shall be
considered in respect of the two above
mentioned Sections as well which have
been inadvertendly left out which will
find place in the later part of the order.

8. The learned counsel for the
applicants shall carry out the necessary
amendments in terms of circular of the
High Court dated 14.04.2020.

On merits

9. The applicants before this Court
are foreign nationals who are in Jail since
18.04.2020. All the applicants are citizens
of Kyrgyzstan and all of them have been
accused of offences under Sections 188
I.P.C., Section 3 of Epidemic Disease
Act, 1897, Section 12(3) of the Passport
Act, 1967 and Sections 3(2) and Section 3
(3) Passports (Entry into India) Act, 1920
and Section 14/14-C of the Foreigners
Act, 1946 and Section 51 of the Disaster
Management Act, 2005. All the above
applicants are accused in Case Crime No.
81 of 2020

10. As per the averments contained
in the First Information Report, the
Administration
on
22.03.2020
had
imposed Section 144 C.r.P.C. within the
area of Lucknow Commissionarate. It is
alleged that the same was widely
publicised
amongst
the
public.
Information was received that in a
Markaz Mosque situated at Dr. B. N.
Verma Road within P.S. Kaiserbagh,
District Lucknow, 6 foreign nationals
who had entered India on a tourist Visa
were being given shelter in the said
mosque by its Manager namely Ali
Hasan. The aforesaid foreign nationals
had attended the religious congregation at
Nizamuddin in New Delhi and thereafter
had come to Lucknow and without getting
their medical examination done, they
were residing in the Markaz Mosque.

11. It is also alleged that the
Manager of the Mosque had given shelter
to these foreign nationals for the purposes
of
propagating
and
disseminating
religious discourse and these persons
have violated the norms and were staying
at one place. It is also alleged that the
local police/Administration were not
informed regarding these 6 foreign
nationals. The applicants were medically
examined and on 31.03.2020 and they
were kept at the Lok Bandu Hospital
under 14 day's quarantine under medical
supervision.
It
is
alleged
that
the
applicants have deliberately violated the
Government Orders and have worked
against the provisions of law and for the
aforesaid they have been accused of
having committed offence under the
Sections as hereinabove mentioned.

12. Before dealing with the
respective submissions of the parties, it
would be relevant to notice that Corona
6 All. Sagynbek Toktobolotov & Ors. Vs. State of U.P. 1231
Virus (hereinafter referred to as COVID-19)
was declared as a pandemic as it affected
various countries across the world. Respective
countries resorted to stern measures for the
containment of the disease and for the benefit
of their citizens. The aforesaid disease
assumed
a
gigantic
proportion
and
consequently assessing the sensitivity and
severity of COVID-19, the Government of
India had announced a nation wide lockdown.
The aforesaid lockdown resulted in cessation
of all modes of transport, both inter-state and
Intra-State, air travel both domestic as well as
international was also prohibited and all
persons were directed to stay within their
homes and only certain sections of the Society
who were engaged and dealing with essential
services were permitted to work while
remaining activities including all other
economic activities not precribed as the
essential services were brought to a stand still.

13. It is in this backdrop that Sri Agarwal
has submitted that the applicants are absolutely
innocent
and
merely
by
fortuitous
circumstances have been implicated without
any fault. It has further been submitted that all
the applicants are valid passport holders and
were granted valid Visa to arrive in the territory
of India. The applicants arrived at New Delhi
on different dates and thereafter all the
applicants reached Lucknow on 13.03.2020. It
is the specific case of the applicants that they
had provided all the necessary details regarding
their travel and stay within the territory of India
including at Lucknow with the Foreigner
Regional
Registration
Office,
Lucknow
(hereinafter referred to as FRRO), Lucknow
which is under the Ministry of Home Affairs,
Government of India.

14. Sri Agarwal has also submitted
that all the applicants had duly filled in
Form-C, copies of which relating to
each of the applicants has been annexed
as Annexure No. 3. It has been
submitted that from the perusal of
Form-C, it would indicate that the name
of the respective applicant, the address,
city, mobile numbers, personal details
as
well
as
various
other
details
including
the
passport
and
Visa
including its number, date of issue, its
expiry, place of issue and period of its
validity have been clearly mentioned.
The said Form-C was duly filled in by
each of the applicant and was submitted
before the appropriate authority. The
learned counsel for the applicants has
also specifically stated that apart from
submitting Form-C with the FRRO
Office, the requisite details in respect of
the arrival of the applicants in Lucknow
and their programme details were also
sent to the Officer of Intelligence
Bureau posted at the FRRO Office
namely Sri Tiwari on his whatsapp
mobile number and the screen shot of
the said message sent has also been
annexed as Annexure No. 4 with the
bail application.

15. It is also submitted that the
applicants arrived in Lucknow on
13.03.2020 and as per their disclosed
programmes, they were to stay in
Lucknow for a period of 22 days. It is
during this period that on 22.03.2020
initially a Janta Curfew was observed
and thereafter the Government of India
announced a National Lockdown due to
which the movement of the applicants
was completely restricted and they were
confined to the place of their stay and
could not more or travel out of
Lucknow or even the Counrty and thus
by circumstances the applicants were
confined
and
because
of
certain
perceptions against the members who
attended the Markaz congregation at
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
New Delhi, the applicants have been
framed and various Sections have been
imposed against the applicants even
though they are completely innocent
and are facing incarcaration on foreign
soil since 18.04.2020.

16. Sri Agarwal has submitted that
since the applicants had already submitted
their details including the place of residence
at Lucknow, accordingly, the Government
already had the details and whereabouts of
the applicants. It is in view of the aforesaid,
that the police visited the Markaz Mosque
at Dr. B.N. Road, Lucknow and from there
the applicants were taken in custody. It has
been stated that they were taken to the Lok
Bandu Hospital where they were put in
quarantine for 14 days and during this
period they were tested thrice and on all the
occasions, all the applicants tested negative
for COVID-19 and thereafter they have
been put in Jail on 18.04.2020 under the
sections as mentioned above.

17. Sri Agarwal has vehemently
urged that all the aforesaid Sections
which have been levied against the
applicants are apparently not met out,
inasmuch as, it is not a case where the
applicants entered within the territory of
India either on a false passport or under
false details. The applicants have not
violated any Government Order and the
Sections which have been imposed
against the applicants are all bailable
entailing a sentence of 6 months to one
year and fine or both except Section 14
and 14-C which provides for a sentence
which may extended to 5 years and fine.
It has been submitted that the Visa of all
the applicants in question was valid till
their intended period of stay and only on
account of lockdown, their movement
was prohibited. On account of COVID-19
lockdown in India which commenced
from 25th March till 14th April, 2020 and
was thereafter extended from 15.04.2020
till 03.06.2020 and again from 04th May
till 17th May, 2020 and yet again was
extended from 18th May to 31st May,
2020. Therefore, it cannot be said that the
applicants have stayed in the territory of
India for a period exceeding the period
for which the Visa was issued to them or
the applicants violated the condition of
Visa deliberately. Any violation, if any,
though, not admitted, is purely on account
of the pandemic and the affected
countries have passed orders to deal with
such over stay in the country.

18. Sri Agarwal has also submitted
that the applicants are innocent persons
and there is no chance for the applicants
to abscond as their passports have already
been impounded by the police and they
are ready to comply with any condition as
imposed by the Court and neither there is
any criminal history against any of the
applicants and consequently, they are
languishing in jail since 18.04.2020 and
are entitled to be enlarged on bail.

19. Sri Tomar while vehemently
opposing
the
bail
application
has
submitted that the applicants came to the
Country under a tourist Visa. A person
who enters the territory of India under a
tourist Visa is not entitled to participate or
undertake any religious seminar or
involve onself in any religious discourses.
It has also been submitted that the
applicants while being within the territory
of India did not disclose that they
attended the Markaz congregation at
Nizamuddin in New Delhi and the fact
that thereafter since some persons from
the Markaz Congregation in New Delhi
had tested positive of COVID-19 and
6 All. Sagynbek Toktobolotov & Ors. Vs. State of U.P. 1233
various announcements were made on
public platforms requiring all persons
who had attended such a congregation to
voluntarily come forward for testing for
COVID-19 to contain the spread of virus
but all the applicants did not come
forward and they remained a threat to the
society at large.

20. Sri Tomar has also submitted
that it is only when the police received
information
regarding
the
foreign
nationals being given shelter in the
Markaz Mosque at Lucknow that the
applicants
were
rounded
and
were
medically examined and as per the
guidelines issued by the Ministries of
Home Affairs and Health Affairs, the
applicants were put in quarantine for 14
days. It has been further submitted by Sri
Tomar that the applicants who are foreign
nationals and having no permanent abode
in India, hence, if the applicants are
enlarged on bail, it will be difficult to
keep a track and chances of them
absconding and not being available for
trial looms large, thus, under the aforesaid
circumstances, it would be appropriate
that the applicants are not enlarged on
bail, coupled with the fact that the
investigation is still underway and the
charge sheet has yet not been filed.

21. The Court has given anxious
considerations to the rival submissions
and also perused the record. The question
before the Court for consideration is
whether in the facts and circumstances,
the applicants are entitled to be granted
bail, who are foreign nationals.

22. In order to answer the aforesaid
questions, it will be important to note that
Article 21 of the Constitution of India
uses the word ''personal liberty'. The
addition of the word ''personal' before the
word ''liberty' as used in Article 21
indicates that it is an anti-thesis of
physical restrain or coercion. It is a basic
right of an individual to be free from
restrictions or encroachment on his
person.

23. Article 21 is often termed as the
heart and soul of the fundamental rights
as
enshrined
in
Part
III
of
the
Constitution. Needless to mention that
Article 21 guarantees every man whether
he be a citizen of the country or a
foreigner that he shall not be deprived of
his personal life and liberty except in
accordance with the procedure established
by law.

24. Thus, it would be seen that
personal liberty is a very precious
fundamental right and it can be curtailed
only
when
it
becomes
imperative
according to the peculiar facts and
circumstances of the case and that too
only in accordance with the procedure
established by the law.

25. Liberty of a person ought not to
be lightly dealt with, since deprivation of
liberty has immense impact on the mind
of a person. Personal liberty in our
country has been exalted to a high
pedestal and is also important to any
civilized society. Our constitution has
conferred certain rights on every human
being and certain rights on citizens,
however, every person is entitled to
equality before the law and equal
protection of law. So also no person can
be deprived of his life or personal liberty
except in accordance with the procedure
established by law, and in this context,
every person would include a foreign
national as well.
1234 INDIAN LAW REPORTS ALLAHABAD SERIES

26. The applicants who have prayed
for bail even though are foreign nationals,
cannot be deprived of their personal
liberty except in procedure established by
law and that they are also entitled to equal
protection of law and equality before law.
Therefore, unless and until extreme
circumstances are pointed out, it cannot
be considered that the parameters for
considering a bail application for a
national or a foreigner would be on a
different footing before the Court of law.

27. The law does not permit any
differentiation between Indian nationals
and foreign citizens in the matter relating
to grant of bail. What is permissible while
considering the facts and circumstances
of each case, the Court can impose
different
conditions
which
may
be
necessary to ensure that the accused is
made available for facing the trial and an
application for bail cannot be rejected
solely on the ground the applicants are
foreign nationals.

28. It is now fairly well settled and
does not require much elaboration that the
object of bail is neither punitive nor
preventive. Deprivation of liberty is
considered a punishment unless it is
requires to ensure that an accused person
will stand trial when called upon. It would
be quite contrary to the concept and idea
of personal liberty as enshrined in our
Constitution that any person should be
punished in respect of any matter upon
which he has yet not been convicted or
that in any circumstances, he would not
be deprived of his liberty only upon the
belief that he may tamper with the
evidence or a witness if he is granted the
liberty,
save
in
extraordinary
circumstances.
In
our
criminal
jurisprudence, bail is the Rule and
committal to the Jail is an exception.
Speedy justice is also a fundamental right
which has been recognized by the Apex
Court flowing from Article 21 of the
Constitution of India.

29. Apparently, from the material
available on record, the learned A.G.A.
could not dispute that all the applicants
entered the country with a valid passport
and a valid Visa. The record indicates that
the applicants arrived in India between
the months of December, 2019 and
March, 2020. All the applicants arrived in
Lucknow on 13.03.2020 and all of them
had given prior information regarding
their programme of stay at Lucknow for a
period of 22 days. The validity of Visa of
the applicant no. 1 is till 24.06.2020,
while the Visa of the applicant no. 2 was
valid till 22.05.2020, the validity of Visa
of the applicant no. 3 was till 02.06.2020,
validity of the Visa of the applicant no. 4
was till 26.05.2020, the validity of the
Visa of the applicant no. 5 is till
20.02.2021 and the Visa of the applicant
no. 6 is also valid till 17.02.2021.

30. The record also indicates that
the Form-C submitted by the applicants
with the FRRO has indicated the address
as Dr. B.N. Verma Road, Markaz Wali
Maszid, Aminabad Road, Lucknow. In
the aforesaid Form-C under the head of
other details, it is clearly mentioned
regarding
their
stay
at
Delhi
in
Nizamuddin. The learned A.G.A. could
not dispute the aforesaid fact nor could
give a reply to the clear averments made
in the bail application that the aforesaid
Form-C was duly submitted before the
FRRO as well as sent on the whatsapp
mobile of Intelligence Oficer Sri Tiwari,
as specifically mentioned in paragraph 6
and
7
of
the
bail
application.
6 All. Sagynbek Toktobolotov & Ors. Vs. State of U.P. 1235

31. It also could not be disputed by
the learned A.G.A. that the stay of the
applicants in the country was under a
valid passport and Visa which is valid
up to the months of May, 2020 and
June, 2020 in respect of some of the
applicants and even up to the year 2021
in case of two applicants but the fact
remains that as per the declared itinery
of the applicants they were to remain in
Lucknow w.e.f. 13.03.2020 a period of
22 days, thus, in any case, their stay in
the city of Lucknow was scheduled till
05.05.2020. The Visa of the applicant
no. 1 is to expire on 24.06.2020 while
that of applicant no. 2 on 22.06.2020,
that
of
the
applicant
no.
3
on
22.06.2020 that of the applicant no. 4
on 26.05.2020 and that of the applicant
nos. 5 and 6 in the month of February,
2021. It is also not disputed that the
national lockdown became effective
from 25.03.2020 for 21 days till
14.04.2020 and then extended from time
to time,in phases, till 31st May, 2020
when lockdown 4.0 came to be an end.
Neither any material could be pointed
out at this stage by the learned A.G.A.
to indicate that the applicants were
engaged
in
activity
regarding
propogating
or
disseminating
any
religious discourse.

32. Also to be noted that the
applicants were tested thrice and each
time they all tested negative for
COVID-19.
The
efforts
of
the
administration
and
the
police
establishment
while
dealing
with
containment of COVID-19 pandemic
and enforcement of law and order has
been praiseworthy, however, that in
itself does not give a blanket clearance
to all their acts rather each case, as it
comes before the Court, has to be seen
and judged on its own peculiar facts and
circumstances and the material placed
before it.

33. In the aforesaid backdrop if the
Sections with which the applicants are
accused of are noticed, it would indicate
that Section 188 I.P.C. entails a
maximum sentence of 6 months or fine
or both. Section 3 of the Epidemic Act
is merely an enabling Section and the
punishment is co-related to Section 188
I.P.C. Section under the Passport (Entry
into India), 1920 entails a sentence for a
term which may up to 5 years or penalty
or with both. While the offence under
Section 12 (3) of the Passport Act
entails a sentence of 3 months or fine or
both, while under Section 51 of the
Disaster Management Act, 2005, the
punishment as prescribed is upto 1 year
or fine or both.

34. The parameters for grant of bail
has been the subject matter of various
decisions of the Apex Court and it is now
fairly well settled that various factors which
are kept in mind while considering the
application for grant of bail includes the
nature of seriousness of the offence, the
stage of the investigation, severity of
punishment, a reasonable possibility of the
presence of the accused being secured at the
trial, reasonable apprehension of the
evidence being tampered or circumstances
regarding chance of the witness being
influenced.

35. The Court gainfully relies upon
the decision of the Apex Court in the case
of Anil Kumar Yadav Vs. State (NCT of
Delhi) and another reported in 2018 (12)
SCC Pg. 129 wherein the Apex Court
relying upon earlier decision has held as
under :-
1236 INDIAN LAW REPORTS ALLAHABAD SERIES

17. While granting bail, the
relevant considerations are: (i) nature of
seriousness of the offence; (ii) character
of the evidence and circumstances which
are peculiar to the accused; and (iii)
likelihood of the accused fleeing from
justice; (iv) the impact that his release
may make on the prosecution witnesses,
its impact on the society; and (v)
likelihood of his tampering. No doubt,
this list is not exhaustive. There are no
hard-and-fast rules regarding grant or
refusal of bail, each case has to be
considered on its own merits. The matter
always calls for judicious exercise of
discretion by the Court.

18. While considering the basic
requirements for grant of bail, in State of
U.P. v. Amarmani Tripathi [State of U.P.
v. Amarmani Tripathi, (2005) 8 SCC 21 :
2005 SCC (Cri) 1960 (2)] , this Court has
held as under: (SCC p. 31, para 18)

"18. It is well settled that the
matters to be considered in an application
for bail are (i) whether there is any prima
facie or reasonable ground to believe that
the accused had committed the offence;
(ii) nature and gravity of the charge; (iii)
severity of the punishment in the event of
conviction; (iv) danger of the accused
absconding or fleeing, if released on bail;
(v) character, behaviour, means, position
and standing of the accused; (vi)
likelihood of the offence being repeated;
(vii) reasonable apprehension of the
witnesses being tampered with; and (viii)
danger, of course, of justice being
thwarted by grant of bail [see Prahlad
Singh Bhati v. State (NCT of Delhi)
[Prahlad Singh Bhati v. State (NCT of
Delhi), (2001) 4 SCC 280 : 2001 SCC
(Cri) 674] and Gurcharan Singh v. State
(NCT of Delhi) [Gurcharan Singh v. State
(NCT of Delhi), (1978) 1 SCC 118 : 1978
SCC (Cri) 41] ]. While a vague allegation
that the accused may tamper with the
evidence or witnesses may not be a
ground to refuse bail, if the accused is of
such character that his mere presence at
large would intimidate the witnesses or if
there is material to show that he will use
his liberty to subvert justice or tamper
with the evidence, then bail will be
refused. We may also refer to the
following principles relating to grant or
refusal of bail stated in Kalyan Chandra
Sarkar
v.
Rajesh
Ranjan
[Kalyan
Chandra Sarkar v. Rajesh Ranjan, (2004)
7 SCC 528 : 2004 SCC (Cri) 1977] :
(SCC pp. 535-36, para 11)

''11. The law in regard to grant
or refusal of bail is very well settled. The
court granting bail should exercise its
discretion in a judicious manner and not
as a matter of course. Though at the stage
of granting bail a detailed examination of
evidence and elaborate documentation of
the merit of the case need not be
undertaken, there is a need to indicate in
such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged
of having committed a serious offence.
Any order devoid of such reasons would
suffer from non-application of mind. It is
also necessary for the court granting bail
to consider among other circumstances,
the following factors also before granting
bail; they are:

(a) The nature of accusation and
the severity of punishment in case of
conviction and the nature of supporting
evidence.

(b) Reasonable apprehension of
tampering
with
the
witness
or
apprehension of threat to the complainant.

(c) Prima facie satisfaction of
the court in support of the charge. (See
Ram Govind Upadhyay v. Sudarshan
Singh
[Ram
Govind
Upadhyay
v.
6 All. Sagynbek Toktobolotov & Ors. Vs. State of U.P. 1237
Sudarshan Singh, (2002) 3 SCC 598 :
2002 SCC (Cri) 688] and Puran v.
Rambilas [Puran v. Rambilas, (2001) 6
SCC 338 : 2001 SCC (Cri) 1124] .)'"

(emphasis in original

19. The test to be applied for
grant of bail was also considered in
Jayendra Saraswathi Swamigal v. State of
T.N. [Jayendra Saraswathi Swamigal v.
State of T.N., (2005) 2 SCC 13 : 2005
SCC (Cri) 481] , wherein it was held as
under: (SCC pp. 21-22, para 16)

"16.
...
The
considerations
which normally weigh with the court in
granting bail in non-bailable offences
have been explained by this Court in State
v. Jagjit Singh [State v. Jagjit Singh,
(1962) 3 SCR 622 : AIR 1962 SC 253 :
(1962) 1 Cri LJ 215] and Gurcharan
Singh v. State (NCT of Delhi) [Gurcharan
Singh v. State (NCT of Delhi), (1978) 1
SCC 118 : 1978 SCC (Cri) 41] and
basically they are -- the nature and
seriousness of the offence; the character
of the evidence; circumstances which are
peculiar to the accused; a reasonable
possibility of the presence of the accused
not being secured at the trial; reasonable
apprehension of witnesses being tampered
with; the larger interest of the public or
the State and other similar factors which
may be relevant in the facts and
circumstances of the case."

36.

Considering
the
rival
submissions, material available on record
as well as balancing the apprehensions of
both sides, the nature of accusations
against
the
applicants,
severity
of
punishment if the applicants are convicted
and also to ensure their presence at trial,
hence, this Court at this stage, without
expressing any opinion on merits, is of
the considered view that the applicants
are entitled to be enlarged on bail.

37. Any observations made by this
Court in the order shall not be taken as an
expression on the merits of the case and
the material considered by this Court is
only for the purposes of adjudication of
the bail application and shall not affect
the trial.

38. The registry of this Court has
pointed out certain defects. Learned
counsel for the applicants has given
undertaking to cure the same soon after
the COVID-19 lockdown ends. In this
regard. the High Court has issued certain
guidelines in terms of Circular dated
14.04.2020. The relevant portion thereof
reads as under:-

"2. However, during the lock
down period, the requirement of an
affidavit/e-affidavit/scanned
Notary
Affidavit shall not be mandatory in the
case of BAIL APPLICATIONS and
ANTICIPATORY BAIL APPLICATIONS.
In lieu thereof, Counsel shall have to
submit, in the e-filed petitions, the Adhar
Card Number, full details of the card
holder like name, parentage, age and
address, as also the mobile number linked
to the adhar card, of the person wanting
to act as the deponent in the matter along
with
a
declaration
of
that
applicant/petitioner/pairokar
affirming
the correctness of the disclosures and
averments
made
in
the
application/petition. In case of civil
matters, a prayer for dispensing with the
requirement of filing an affidavit may be
made along with the urgency application
which
shall
also
be
considered
simultaneous with the issue of urgency.

3. This waiver or relaxation is
subject to a proper affidavit being filed, in
hard copy, within a period of 15 days
from the date the lock down is lifted. No
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
further time shall be granted for the
purpose. In case a proper affidavit is not
filed as specified above, the said case
shall stand dismissed automatically and
any order passed therein, shall stand
recalled, without any reference to the
Court. A communication, in this regard
shall be sent by the Registry to the
Court(s)
below/authorities
concerned,
forthwith for consequential action."

The aforesaid order passed by
this Court shall be subject to compliance
of the aforesaid guidelines of the
aforesaid Circular dated 14.04.2020.

Hence, this order shall be
subject to the adherence of the said
circular dated 14.04.2020.

39. Let the applicants Sagynbek
Toktobolotov, Sultanbek Tursunbaiuulu,
Ruslan Toksobave, Zamirbek Maraliev,
Aidyn Taldu Kurgan @ Aidyn Kairbex &
Dauren Taldu Kuragn @ Dauren Zhe
Xenbekov involved in Case Crime No., 81 of
2020 under Sections 188 I.P.C., Section 3 of
Epidemic Disease Act, 1897, Section 12 (3)
of the Passport Act, 1967 and Sections 3 (2)
and Section 3(3) of Passports (Entry into
India) Act, 1920 and Section 14/14-C of the
Foreigners Act, 1946 and Section 51 of the
Disaster Management Act, 2005, Police
Station- Kaiserbagh. District Lucknow be
released on bail on their furnishing a personal
bond of Rs. 50,000/- each and one reliable
solvent surety to the satisfaction of the Court
concerned and the following conditions are
being imposed in the interest of justice.

(i) The applicants will not leave the
country without prior written permission of
the Court and shall furnish an undertaking to
the said effect.

(ii) Each applicant will also deposit
a sum of Rs. for deposit of Rs. 11,000/- in the
C.M. Covid-19 Relief Fund and shall submit
a receipt in this regard before the Court
concerned.

(iii) Each applicant shall file an
undertaking to the effect that he shall not seek
any adjournment on the dates fixed for
evidence when 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.

(iv) Each applicant shall remain
present before the trial court on each date
fixed, either personally or through their
counsel. In case of his absence, without
sufficient cause, the trial court may proceed
against them under Section 229-A of the
Indian Penal Code.

(v) In case, the applicants misuse
the liberty of bail during trial and in order to
secure their presence a proclamation or a look
out notice be issued and the applicants fail to
appear before the court on the date fixed in
such proclamation, then, the trial court shall
initiate
proceedings
against
them,
in
accordance with law.

(vi) The applicants 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, absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial court
to treat such default as abuse of liberty of bail
and proceed against them in accordance with
law.

40. A copy of this order shall be
sent to the Senior Superintendent of
Police, Lucknow/Deputy Inspector of
General, Lucknow to ensure that the
investigation is expedited as soon as
possible and direct the Investigating
Officer to take all the steps for speedy
trial
of
the
case.
6 All. Parvez Ahmad Vs. State of U.P. 1239
----------
(2020)06ILR A1239
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2020

BEFORE

THE HON'BLE SIDDHARTH, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 2609 of 2020

Parvez Ahmad ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Santosh Yadav

Counsel for the Opposite Party:
A.G.A.

(A) Criminal law - Indian Penal Code,
1860 - Sections 376-D, 376(2)(n) 420,
506
-
Section
120-B
for
offence
conspiracy of rape - Code of criminal
procedure, 1973 - Section 438 Cr.P.C -
anticipatory
bail,
Section
161
--
Statement recorded before investigating
officer , section 164 - State recorded
before magistrate , Section 173 (2) -
Submission of police report , Section 439
- High Court or the Court of Session
vested with power to grant bail to any
person accused of an offence and in
custody - Right to life and personal
liberty are 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. Para
-
18

Prosecutrix lodged the First Information
Report
against
Lekhapal
(co-accused)
-
Promised her to provide job and demanded
certain amount for payment to higher officers
- sole allegation against the applicant - he
along with co-accused recorded the video
when the co-accused was committing rape -
said
version
is
not
supported
by
the
prosecutrix either in her statement under
section 161 Cr.P.C. or 164 Cr.P.C. - Applicant
not named in the First Information report - He
is neither driver nor friend of co-accused - No
allegation of gang rape has been alleged
against the applicant. Para - 3,14,23

HELD:- Without expressing any opinion on
the merits of the case and considering the
nature of accusations and his antecedents, the
applicant is entitled to be released on
anticipatory bail in this case.
Para - 24

Criminal
Misc.
Anticipatory
Bail
Application allowed. (E-7)

LIST OF CASES CITED:-

1. Sushila Aggarwal Vs St. (NCT of Delhi) ,
2020 SCC online SC 98

2. Siddharth Varadarajan Vs St. of U.P.& anr.
passed in Bail No. 2778 of 2020 (anticipatory
bail)

3. Gurbaksh Singh Sibbiya & ors. Vs St. of
Punj., (1980) 2 SCC 565

4. Siddharam Satlingappa Mhetri Vs St. of
Mah., (2011) 1 SCC 694

5. Bhadresh Bipinbhai Sheth Vs St. of Guj. ,
(2016) 1 SCC 152

6. Salauddin Abdulsamad Shaikh Vs St. of
Mah. , (1996) 1 SCC 667

7. K.L. Verma Vs St. & anr., (1998) 9 SCC 348

8. Sunita Devi Vs St. of Bihar, (2005) 1 SCC
6087

9. Nirmal Jeet Kaur Vs St. of M.P., 7 SCC 558

10. HDFC Bank Ltd. Vs J.J. Mannan, (2010) 1
SCC 679

11. Satpal Singh Vs St. of Punj. , (2018) 4 SCC
303

(Delivered by Hon'ble Siddharth, J.)