# Siddharth Varadarajan v. State of U.P. & Anr

- **Citation:** Bail No. 2778 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-15
- **Case number:** Bail No. 2778 of 2020
- **Bench:** Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/siddharth-varadarajan-v-state-of-u-p-anr-46316
- **Pages:** 12

## Headnote

law-
Code
of
Criminal
Procedure,1973-Section
438
&
Indian
Penal Code, 1860-Sections 188, 505(2)-
application-allowed-FIR lodged by the
Police upon the applicant tweet relating to
religious sentiment on Covid-19 Cases
Spike which was also published by "The
Wire" on the large fair planned for
Ayodhya by Chief Minister on the occasion
of Ram Navami-notice was served upon
the applicant's wife directing the applicant
to appear in Ayodhya from Delhi in the
lockdown-reasonable
apprehension
of
being arrested when another notice was
was served and even chargesheet also
submitted.

While granting bail, the court has to keep in
mind the nature of accusations, evidence, the
severity
of
the
punishment,character
and
circumastances,
reasonable
possibility
of
securing the presence fo accused at trial,
reasonable apprehension of the witnesses being
tampered with, the larger interests of the
public/state and other similar considerations

The application is allowed. (E-6)

List of Cases Cited:-

## Text

1300 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) In case, the applicant misuses
the liberty of bail during trial and in order
to secure his presence proclamation under
Section 82 Cr.P.C. is issued and the
applicant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(iv) 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 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 him in
accordance with law.

(v) The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

(vi) The computer generated copy
of such order shall be self attested by the
counsel or the party concerned.

(vii)
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.

27. And in case any application be
filed before the Remand Magistrate, the
same should be ignored and has been
rendered ocious.
----------
(2020)03-05ILR A1300
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.05.2020

BEFORE

THE HON'BLE CHANDRA DHARI SINGH, J.

Bail No. 2778 of 2020

Siddharth Varadarajan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Party

Counsel for the Applicant:
Amrendra
Nath
Tripathi,
Surangama
Sharma

Counsel for the Opposite Party:
---

A.
Criminal
law-
Code
of
Criminal
Procedure,1973-Section
438
&
Indian
Penal Code, 1860-Sections 188, 505(2)-
application-allowed-FIR lodged by the
Police upon the applicant tweet relating to
religious sentiment on Covid-19 Cases
Spike which was also published by "The
Wire" on the large fair planned for
Ayodhya by Chief Minister on the occasion
of Ram Navami-notice was served upon
the applicant's wife directing the applicant
to appear in Ayodhya from Delhi in the
lockdown-reasonable
apprehension
of
being arrested when another notice was
was served and even chargesheet also
submitted.

While granting bail, the court has to keep in
mind the nature of accusations, evidence, the
severity
of
the
punishment,character
and
circumastances,
reasonable
possibility
of
securing the presence fo accused at trial,
reasonable apprehension of the witnesses being
tampered with, the larger interests of the
public/state and other similar considerations

The application is allowed. (E-6)

List of Cases Cited:-

1. Siddharam Satlingappa Mhetre Vs. St. Of
Mah. (2011) 1 SCC 694

2. Gurbaksh Singh Sibbia Vs. St. Of Punj. (1980)
2 SCC 656
3-5 All. Siddharth Varadarajan Vs. State of U.P. & Anr.
1301
3. Ashok Sagar Vs. St.(NCT of Delhi) (2018) SCC
Online Del 9548

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

5. Sushila Aggarwal Vs. St. (NCT of Delhi)
(2020) SCC Online SC 98

6. Savitri Agarwal & Ors. Vs. St. Of Mah. &
ors.(2009) 8 SCC 325

7. Deepak Mahajan Vs. ED (1994) SCC (Crl) 785

(Delivered by Hon'ble Chandra Dhari Singh, J.)

1. Objection filed by the State is taken
on record.

2. This bail application has been taken
up today through Video Conferencing.

3. The instant application under
Section 438 Cr.P.C. has been filed with a
prayer for anticipatory bail of the accusedapplicant who is involved in FIR No.268 of
2020, under Sections 188 & 505(2) IPC,
Police Station Kotwali Nagar, District
Ayodhya.

4. Brief facts of the case are that the
applicant is editor of online news portal
"The Wire". As per the prosecution story,
the complainant had lodged the FIR on
01.04.2020 in the aforementioned sections
alleging therein that the applicant had made
a tweet on website Twitter.com which was
allegedly defamatory towards the Chief
Minister of Uttar Pradesh. The said FIR
was lodged on the report published by "The
Wire" on 31.03.2020 titled as "Covid-19
Cases
Spike
in
Nizzamuddin
Nehru
Stadium in Delhi to Become Quarantine
Centre", which was also tweeted by the
applicant on 31.03.2020 and 01.04.2020.
Relevant portion of the tweet is reproduced
hereinbelow:-

"On the day the Tablighi Jamaat
event was held. Yogi Adityanath insisted
that a large fair planned for Ayodhya on
the occasion of Ram Navami from March
25 to April 2 would proceed as usual while
Acharya Paramhans said that Lord Ram
would
protect
devotees
from
the
coronavirus'.

One day after Modi announced
the "curfew like" national lockdown on
March 24, Adityanath violated the official
guidelines to take part in a religious
ceremony in Ayodhya along with dozens of
people."

5. The error in the said report was
corrected as soon it became known of the
applicant and the incorrect version was
deleted. FIR was registered on 01.04.2020.
The instant application has been filed
seeking anticipatory bail of the applicant as
an apprehension of arrest in connection of
the said FIR.

6. Shri I.B. Singh, learned Senior
Advocate has submitted that the said FIR is
nothing but an attempt to muzzle free
speech and it is also submitted that the
report in the said Magzine and Tweeter
handle by the applicant is based on
statements of facts which was also covered
by various other news publications such as
Deccan Herald, The Print, NDTV and
Economic Times. The said report has never
been denied by the Government of U.P. In
such circumstances, the learned Senior
Advocate has submitted that the applicant
has not committed any offence as alleged in
the FIR. The FIR is frivolous, malicious
and motivated in nature. Furthermore, one
small error in the report wherein the
statement was wrongly attributed to the
Chief Minister of U.P. was corrected as
soon it became known and even before the
registration of the FIR. It is submitted that
1302 INDIAN LAW REPORTS ALLAHABAD SERIES
any factual inaccuracies are not subject to
any criminal action in law, even more so
the offences with which the applicant has
been charged.

7. Learned Senior Advocate has
further submitted that the FIR purportedly
relates to the said article and tweets in
relation thereto, which are matters of
record, so there is no possibility of
tampering of evidence and there is no
requirement of custodial interrogation.
Learned Senior Advocate has further
submitted that the applicant is a permanent
resident and working in Delhi. He has deep
roots in Delhi and his immediate family is
also resident of Delhi.

8. Learned Senior Advocate has also
submitted that only one offence cited is
non-bailable and that too carries the
maximum imprisonment of three years, in
which arrest is deprecated by Courts and
the law. It is further submitted that the
news portal i.e. "The Wire" and the
applicant were being targeted and harassed
by Government of U.P. through U.P. Police
in connection with the said article even
though the small factual inaccuracy therein
has been promptly corrected presumably
because the said article shows the U.P.
Government's handling Covid-19 crisis in
critical light.

9. Learned Senior Advocate has
submitted that on 10.04.2020 pursuant to
FIR No.246 of 2020, some policemen of
U.P. came to the applicant's residence and
served upon his wife a written notice under
Section 41(A) of Cr.P.C. directing the
applicant to appear at Police Station
Ayodhya at 10 AM on 14.04.2020 knowing
fully well that given the current lockdown,
where no trains or planes are operating and
people are being prosecuted for stepping
out of their houses, and further, the border
between the NCT of Delhi and the State of
Uttar Pradesh is closed for ordinary traffic,
it would be impossible for the applicant to
comply with the said notice. The applicant
gave reply to the said notice through Email
dated 13.04.2020 to the relevant officials of
Uttar Pradesh police. In his response, the
applicant clearly expressed his willingness
to cooperate with the respondents in the
investigation and highlighted his inability
to comply with the direction to appear at
P.S. Ayodhya on 14.04.2020 in view of
lockdown.

10. It is further submitted that the
police has sent a second notice under
Section 41(A) of Cr.P.C., on 26.04.2020
relating to FIR No.246 of 2020. The
applicant replied to the said second notice
on 28.04.2020 providing a response to all
questions and requesting the police to
provide
copy
of
FIR
and
relevant
underlying documents as required.

11. Learned Senior Advocate has
submitted that the applicant has very
reasonable apprehension of being arrested
in pursuance of registration of FIR No.246
of 2020 in which the applicant has been
charged with non-bailable offence. Learned
Senior Advocate has further submitted that
while exercising its discretion under
Section 438 Cr.P.C., a Court may, inter
alia, take into consideration the nature and
gravity of the accusation and the role of the
accused. He has relied on a judgment
rendered by Hon'ble Supreme Court of
India
in
the
case
of
Siddharam
Satlingappa
Mhetre
v.
State
of
Maharashtra - (2011) 1 SCC 694 to
support his argument.

12. Learned Senior Advocate has
further submitted that the liberty of an
3-5 All. Siddharth Varadarajan Vs. State of U.P. & Anr.
1303
individual cannot be in the thrall of such
frivolous
invocation
of
non-bailable
provisions.
To
strengthen
his
contention/submission,
learned
Senior
Advocate has relied on Para - 112(x) of
Siddharam Satlingappa's case (supra).

13. Learned Senior Advocate has
submitted that in the instant case filing of
an FIR with cognizable and non-bailable
offences is only with the sole aim of using
the threat of arrest to browbeat the
applicant and "The Wire" into deleting the
said
article
which
shows
the
U.P.
Government's handling of the Covid-19
crisis in a critical light. He has further
submitted that the liberty of an individual is
important in the liberty of society as a
whole. He has relied on a judgment
rendered by the Hon'ble Supreme Court in
the case of Gurbaksh Singh Sibbia v. State
of Punjb - (1980) 2 SCC 656.

14. Learned Senior Advocate has
further submitted that in the case of Ashok
Sagar v. State (NCT of Delhi) - 2018 SCC
Online Del 9548, the Hon'ble Supreme
Court has held that imprisonment of an
accused during the course of investigation
and trial is not meant to be punitive and the
requirement of arrest at this stage is only to
secure the cooperation of the accused and
to prevent any potential prejudice being
caused to the investigation if it is shown
that such prejudice is likely to be caused. If
no such apprehension exists, there can be
no reasonable ground to arrest the accused,
as incarceration would then assume a
punitive avatar.

15. In the instant case, the FIR
purportedly relates to an online news report
and a tweet in relation thereto, which are
matters of record, so there is no possibility
of
tampering
of
evidence
and
no
requirement of custodial interrogation.
Moreover, there is no chance of the
applicant fleeing, as he is permanent
resident and working in Delhi. The
applicant has deep roots in Delhi.

16. Learned Senior Advocate has
lastly submitted that the investigation has
already been completed and after the
investigation, the police has filed chargesheet.
The
Court
below
has
taken
cognizance on the charge-sheet filed by the
investigating officer, but inspite of filing
the charge-sheet and the cognizance being
taken, the present applicant has a strong
apprehension of arrest by the investigating
agency.

17. During the argument, learned
counsel has referred a judgment of the
Hon'ble Supreme Court in the case of
Bhadresh Bipinbhai Sheth v. State of
Gujarat - (2016) 1 SCC 152 and submitted
that the Hon'ble Supreme Court has held
that there is no requirement that the
accused must make out a "special case" for
the exercise of the power to grant
anticipatory bail and a person seeking
anticipatory bail is a free person entitled to
presumption of innocence.

18. It is also submitted that a
Constitution Bench of Hon'ble Supreme
Court in the case of Sushila Aggarwal v.
State (NCT of Delhi) - 2020 SCC Online
SC 98, has held that while holding that
protection under Section 438 of Cr.P.C.,
should ordinarily be without any restriction
as to time and that it should continue till the
end of trial, reiterated the importance of the
protection of individual liberty against
arbitrary, frivolous and malicious arrests by
recalling that it is such arrests which lead to
the enactment of the protection under
Section 438 of Cr.P.C.
1304 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Learned Senior Advocate has
further submitted that, therefore, filing the
charge-sheet by the police as well as the
cognizance being taken by the Court does
not bar for grant of anticipatory bail to the
accused-applicant in the instant case.

20. Per contra, Shri V.K. Shahi,
learned Additional Advocate General and
Shri
Jayant
Singh
Tomar,
learned
Additional Government Advocate have
vehemently opposed the submissions made
by learned Senior Advocate appearing for
the accused-applicant and submitted that no
case is made for granting the relief as
sought for in the instant application under
Section 438 of Cr.P.C. He has submitted
that the said article and the tweet were
nothing but to create a confusion amongst
the public at large in order to disturb the
communal harmony by tweeting else on the
day Tabligi Jamat event was held by
Muslim Community and various statements
linked with Chief Minister were purposely
made with intention to create disharmony
amongst the two communities. It is
submitted that because of this article and
tweet, there were several unfortunate
communal incidents which destroyed the
public peace, and cases were registered
upon
which
actions
were
taken
immediately by the vigilant activities and
activeness of the district police.

21. It has further been vehemently
submitted on behalf of the State that if the
police had not taken appropriate prompt
measures, the communal harmony would have
been disturbed not only in the city but even
would have widely spread outside the state.

22. Learned Additional Advocate General
has submitted that investigation of the case has
been conducted and during the course of
investigation notices under Section 41(A) of
Cr.P.C.
have
been
served
upon
the
accused/applicant upon which he has given
reply through Email and the same has been
included in the case diary as well. After
completion of the investigation, a charge-sheet
against the accused/applicant has been filed in
the Court concerned on 08.05.2020. Learned
Chief Judicial Magistrate, Faizabad, District
Ayodhya has taken cognizance on the said
charge-sheet and after prima-facie satisfaction,
summon has been issued against the accusedapplicant and the next date is fixed as
08.06.2020.

23. Learned Additional Advocate General
has taken a serious objection that there is every
likelihood that the accused-applicant will
abscond and intimidate the witnesses and he
may evade trial too. The accused-applicant is
holding passport of U.S.A., and is an American
citizen, and is residing in India since 1995.
Therefore, the applicant can flee away from the
country.

24. Learned Additional Advocate General
has submitted that since the police has already
completed the investigation and charge-sheet
has been filed and the Court concerned has
already taken congnizance, under law, there is
no apprehension of arrest to the applicantaccused by the investigating agency.

25. Learned Additional Advocate
General has submitted that in view of the
facts and circumstances, the accusedapplicant is not entitled for any relief by
this Court. The anticipatory bail application
of the applicant is devoid of merits and is
based on misconceived facts and liable to
be rejected.

26. I have heard Shri I.B. Singh,
learned Senior Advocate assisted by Ms.
Surangama
Sharma,
learned
counsel
appearing for the applicant; Shri V.K.
3-5 All. Siddharth Varadarajan Vs. State of U.P. & Anr.
1305
Shahi,
learned
Additional
Advocate
General and Shri Jayant Singh Tomar,
learned Additional Government Advocate
appearing for respondent-State.

27. 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. The
provision
of
438
Cr.P.C.,
(U.P.
Amendment) is reproduced hereinbelow:-

"438. (1) Where any person has
reason to believe that he may be arrested on
accusation of having committed a non-bailable
offence, he may apply to the High Court or the
Court of Session for a direction under this
section that in the event of such arrest he shall
be released on bail; and that Court may, after
taking into consideration, inter alia, the
following factors, namely:-

(i) the nature and gravity of the
accusation;

(i) the antecedents of the applicant
including the fact as to whether he has
previously
undergone
imprisonment
on
conviction by a Court in respect of any
cognizable offence;

(iil) the possibility of the applicant to
flee from justice; and

(iv) where the accusation has been
made with the object of injuring or humiliating
the applicant by having him so arrested;

either reject the application forthwith
or issue an interim order for the grant of
anticipatory bail:

Provided that where the High Court
or, as the case may be, the Court of Session, has
not passed any interim order under this subsection or has rejected the application for grant
of anticipatory bail, it shall be open to an
officer in-charge of a police station to arrest,
without warrant, the applicant on the basis of
the
accusation
apprehended
in
such
application.

(2) Where the High Court or, as the
case may be, the Court of Session, consider it
expedient to issue an interim order to grant
anticipatory bail under sub section (1), the
Court shall indicate therein the date, on which
the application for grant of anticipatory bail
shall be finally heard for passing an order
thereon, as the Court may deem fit, and if the
Court passes any order granting anticipatory
bail, such order shall include inter alia the
following conditions, namely:-

(i) that the applicant shall make
himself available for interrogation by a
police officer as and when required;

(ii) 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;

(iii) that the applicant shall not
leave India without the previous permission
of the Court; and

(iv) such other conditions as may
be imposed under sub-section (3) of section
437, as if the bail were granted under that
section.

Explanation:- The final order
made on an application for direction under
sub-section (1); shall not be construed as
an interlocutory order for the purpose of
this Code
1306 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Where the Court grants an
interim order under sub-section (1), it shall
forthwith cause a notice being not less than
seven days notice, together with a copy of
such order to be served on the Public
Prosecutor and the Superintendent of
Police, with a view to give the Public
Prosecutor a reasonable opportunity of
being heard when the application shall be
finally heard by the Court

(4) On the date indicated in the
interim order under sub-section (2), the
Court shall hear the Public Prosecutor and
the applicant and after due consideration
of their contentions, it may either confirm,
modify or cancel the interim order.

(5) The High Court or the Court
of Session, as the case may be, shall finally
dispose of an application for grant of
anticipatory bail under sub-section (1),
within thirty days of the date of such
application.

(6) Provisions of this section
shall not be applicable -

(a) to the offences arising out of -

(i)
the
Unlawful
Activities
(Prevention) Act, 1967;

(ii) the Narcotic Drugs and
Psychotropic Substances Act, 1985;

(iii) the Official Secret Act, 1923;

(iv) the Uttar Pradesh Gangsters
and Anti-Social Activities (Prevention) Act,
1986.

(b) in the offences, in which death
sentence can be awarded.

(7) If an application under this
section has been made by any person to the
High Court, no application by the same
person shall be entertained by the Court of
Session."

28. 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.

29. Therefore, I can straightway trace
out the meaning of the word ''bail' as found
in the various judgments of the Hon'ble
Supreme Court and the Law Dictionaries.

30. The 'bail' means as per Wharton's
Law Lexicon, to "set at liberty a person
arrested on security being taken for his
appearance'.

31. As per the Encyclopaedia
Britanhica, the bail is a procedure by which
a Judge: or Magistrate sets at liberty one
who has been arrested, upon receipt of
security to ensure the release prisoner's
latter appearance in Court for further
proceedings.

32. In Nagendra v. King Emperor
AIR 1924 Cal 476, 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.

33. 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.

34. In Savitri Agarwal and Ors. vs.
State of Maharashtra & Ors. - (2009) 8
3-5 All. Siddharth Varadarajan Vs. State of U.P. & Anr.
1307
SCC 325, 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.

35. Section 438 Cr.P.C. contemplates
an application to be made by person
apprehending arrest of an accusation of
having committed a non-bailable offence. It
is indicative of the fact that the application
for anticipatory bail is pivoted on an
apprehension of arrest which invites
exercise of power under Section 438 of
Cr.P.C. The expression "reason to believe"
or reasonable apprehension of arrest, a term
substitute for each other is the governing
factor to let off a person on anticipatory
bail where submission of charge-sheet, is
an idle parade. It is settled law now that the
submission of the charge-sheet is not a lock
gate for the applicant to be enlarged on
anticipatory bail but it ensures generation
of apprehension of arrest. "Reason to
believe" or apprehension of arrest for
having committed a non-bailable offence
does not grant any licence to any wrongdoer to be enlarged on anticipatory bail.

36. According to the rule of
construction, the expression "reason to
believe" should be construed with the aim,
object and scheme of Section 438 Cr.P.C.
The inflammatory allegations having their
pedestal on falsity, malafide, and motive
afford considerable grounds to be enlarged on
anticipatory bail as the object of it is to
protect an individual from humiliation and
harassment. Thus, the expression "reason to
believe" must be the belief of reasonable
mind where the petitioner or the individual is
immune. The "reason to belief" never
contemplates nor it accords any licence to
any individual to commit the offence and to
seek protection within the realm of Section
438. The expression "reasonable belief"
fosters
a
belief
of
genuine
belief
apprehension of arrest of an allegation which
prima facie is insubstantial and made with a
sinister motive, the object being to malign a
person where his arrest by prosecuting
agency is immediate than remote. But when a
non-bailable offence has been committed by
an accused, such "reason to believe" or
apprehension of arrest can never be equated
with the genuine belief of apprehension of
arrest
proceeding
from
prima
facie
substantial material entitling him to pre-arrest
bail. The section can never be used by any
individual to cultivate his rights when he is
prima facie liable for an accusation and does
not
commensurate
with
his
innonce.
Reasonable belief is not colourable belief.

37.

Section
438(1)
Cr.P.C.
provides that when any person has
reason to believe that he may be
arrested, he may approach the High
Court or Sessions Court. It does not
refer to a particular time or stage to
have such an apprehension of arrest.
However, the words and the language
under Section 438(1) and (3) are so
clear, so as to lead to the conclusion
that whenever any person apprehends
that he may be arrested for a nonbailable offence, he may seek for
anticipatory bail, irrespective of the
stages.

38. Therefore, the apprehension
that
he
may
be
arrested
on
an
accusation of a non-bailable offence has
alone to be given due consideration and
weight, irrespective of the state of the
case.
1308 INDIAN LAW REPORTS ALLAHABAD SERIES

39. When apprehension of arrest
arises? The apprehension of arrest for a
non-bailable offence, one can have at
different stages, namely :-

(a)
during
the
period
of
investigation
by
the
police
after
registration of F.I.R. and before filing
of the final report under Section 173
Cr.P.C.;

(b)
during
further
investigation under Section 173(8),
Cr.P.C. even after filing of the charge
sheet under Section 173 Cr.P.C.;

(c) after taking cognizance by
the Magistrate, summoning the accused
under Section 204 Cr.P.C. through
warrant;

(d)
while
the
Magistrate
committing the Sessions case to the
Court of Session under Section 209
Cr.P.C. and remanding the accused to
custody;

(e) during the enquiry or trial,
if the Court, on the basis of the
evidence let in, impleads a person as an
accused under Section 319 Cr.P.C. for
the
purpose
of
summoning
and
detaining him under Section 319 (2)
and (3) Cr.P.C.

40 The above five contingencies
involve different stages. Once the
person accused of is released on
anticipatory bail or on bail at one stage,
the operation of the bail continues till
the conclusion of trial.

41.

The
grounds
on
which
apprehension of arrest is based must be
capable of being examined by the Court
objectively. Then alone the Court can
determine whether the applicant has
reason to believe that he would be
arrested. Therefore, Section 438 Cr.P.C.
cannot be invoked, unless there is some
material on the basis of which the Court
can come to the conclusion that the
apprehension of the petitioner for the
arrest is genuine.

42. In the case of Gurbaksh Singh
Sibbia (supra), the Hon'ble Supreme Court
went to the extent of observing that in some
circumstances even without registration of
the F.I.R., the Court can grant the relief of
anticipatory bail, if the reasonable belief of
the apprehension is established before the
Court by giving the details of the events
and facts.

43. This would show that even during
the investigation, there are two stages at
which there may be apprehension of arrest.
One is, before the F.I.R. and another is
subsequent to the F.I.R. But, in the light of
the observation of the Supreme Court, it
can be concluded that if the applicant
entertains the apprehension of arrest at the
hands of the police at the petition enquiry
before registering F.I.R., the High Court or
the Court of Session could invoke Section
438 Cr.P.C., provided the imminence of a
likely arrest is shown to exist to the Court.
Since registration of F.I.R. itself would be a
strong material to show that he has got
reason to believe that he may be arrested by
the police.

44. The second stage is during the
course of further investigation under
Section 173(8) Cr.P.C. If a person is not
arrested in the first investigation and in the
event of taking up for further investigation
by the police either on the direction of the
superior officer or on the direction of the
Court or on the basis of fresh materials,
which have come to light, the person
against whom the materials have been
collected in the further investigation could
3-5 All. Siddharth Varadarajan Vs. State of U.P. & Anr.
1309
approach
for
anticipatory
bail,
since
apprehension of arrest could be shown to
the Court exists.

45. The next stage for apprehension
of arrest is at the time of taking cognizance
by the Magistrate on entertaining the police
report or the complaint and issuing warrant
of arrest.

46. Under Chapter XVI, the
proceedings
before
the
Magistrate
commences. Under Section 204 Cr.P.C.,
the Magistrate after taking cognizance
of an offence, can issue summons for
the attendance of the accused. In a
warrant case, he may issue warrant
directing the police to arrest the
accused to produce before him at a
certain time. Though the Magistrate
invariably issues summons even in a
warrant case under Section 204, Cr.P.C.
after taking cognizance, in a police
case, when the police intimated to the
Court that the accused person was not
arrested, since he was absconding, the
Magistrate issues warrant directing the
police to apprehend the absconding
accused. .

47. In fact, only when the charge
sheet is filed and the cognizance is
taken by the Magistrate and the process
is issued, the apprehension of arrest
will become more stronger. At least,
during the course of investigation it
could be said that the apprehension of
arrest is not reasonable, since under
Section 41(A) Cr.P.C. the arrest is not
mandatory. The reading of Section 41
Cr.P.C. would make clear that the arrest
need not be resorted to in all cases
automatically. The police has got a
large discretion to arrest or not to arrest
a person.

48. Therefore, it can be said that
during the investigation, when the
police officer has decided not to arrest,
there is no apprehension of arrest. But,
after filing of the charge sheet and that
too once the warrant/summon is issued
to appear the accused, then there would
certainly be an apprehension of arrest.

49. In the case of Directorate of
Enforcement v. Deepak Mahajan -1994
SCC (Crl) 785, the Hon'ble Supreme
Court has held as follows:-

"Thus the Code gives power of
arrest not only to a police officer and a
Magistrate
but
also
under
certain
circumstances or given situations to private
persons. Further, when an accused person
appears before a Magistrate or surrenders
voluntarily, the Magistrate is entitled to
take that accused persons into custody and
deal with him according to law. Needless to
emphasize that the arrest of a person is a
condition precedent for taking him into
judicial
custody
thereof.
To
put
it
differently, the taking of the person into
judicial custody is followed after the arrest
of the person concerned by the Magistrate
on appearance or surrender......

In the backdrop of the above
legal position, the conclusion that can be
derived is that a Magistrate can himself
arrest or order any person to arrest any
offender if that offender has committed an
offence in his presence and within his local
jurisdiction or on his appearance or
surrender or is produced before him and
take that person (offender), into his custody
subject to the bail provisions."

50. Therefore, this would make it
clear that a person can apprehend arrest at
the hands of the Magistrate for the purpose
of remanding him to custody, while
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
committing the sessions case to the Court
of Session for trial with an accusation of
non-bailable
offence
and
this
would
certainly make that person to be entitled for
approaching the Court under Section 438
Cr.P.C..

51. In view of the above principle as
laid down in several judgments of the
Hon'ble Supreme Court, I have to test the
instant case on the aforesaid principle.

52. The applicant tweeted an article on
the website Twitter.com on 31.03.2020 (supra)
and the same was also published in the news
portal "The Wire" titled as "Covid-19 Cases
Spike in Nizzamuddin Nehru Stadium in Delhi
to Become Quarantine Centre". Thereafter, the
present applicant realised his mistake in the
tweet dated 31.06.2020 and the same was
corrected later on and a clarificatory tweet was
also tweeted on the website Twitter.com on
01.04.2020 prior to lodging of the FIR in the
instant case. It is contended in the affidavit
accompanying the bail application that "on
10.04.2020, pursuant to FIR No.246 of 2020,
some policemen of U.P. came to the applicant's
residence and served upon his wife a written
notice under Section 41(A) of Cr.P.C. directing
the applicant to appear at Police Station
Ayodhya at 10 AM on 14.04.2020 knowing fully
well that given the current lockdown.......". It is
also contended in Para - 38 of the affidavit
accompanying the bail application that the
applicant has expressed his willingness to
cooperate with the investigating agency in the
investigation via Email dated 13.04.2020 to the
relevant police officer, however also shown his
inability to comply with the direction to appear
at Police Station Ayodhya on 14.04.2020 in
view of lockdown due to Covid-19.

53. The applicant has stated on the
affidavit that there are very reasonable and
sufficient apprehension of being arrested for
non-bailable offence. In Para-45 of 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. in relation to FIR No.246 of
2020.

54. Learned Senior Advocate appearing
for the accused-applicant has submitted that the
applicant is willing to cooperate with the
investigation as well as the entire proceeding of
the trial in the instant case. It is also submitted
that there is no possibility of fleeing away as he
has deep route in the society, is a permanent
resident of Delhi and is a reputed journalist. It is
also submitted that the applicant undertakes that
he shall not misuse any condition imposed by
this Court while granting bail.

55. Learned Additional Advocate
General has taken objection that the
applicant is having an American passport
and therefore, there is a chance of him
fleeing away from India. It has further been
submitted that since the charge-sheet has
been filed by the police after completion of
investigation and the cognizance has been
taken on the said charge-sheet by the
concerned Court, therefore, there is no
reasonable apprehension of arrest of the
applicant in the instant case by the police.

56. I do not find any merit in the
argument advanced by learned Additional
Advocate General, as the law discussed
above in several judgments clarify the
situation.

57. In view of the observations made,
the instant anticipatory bail application
under Section 438 Cr.P.C. is allowed.

58. It is directed that, in the event of
his arrest in connection with FIR No.268 of
3-5 All. Shailendra Kumar Gupta @ Shailu Vs. State of U.P.
1311
2020, under Sections 188 & 505(2) IPC,
Police Station Kotwali Nagar, District
Ayodhya,
the
applicant
Siddharth
Varadarajan, be released on bail on his
executing a personal bond to the tune of
Rs.2,00,000/- (Rupees Two Lakh) with two
sureties each in the like amount to the
satisfaction of the learned trial Court
concerned.

59. The applicant shall abide by the
following conditions:

1. The applicant shall not leave India
during the currency of trial without prior
permission from the concerned trial Court.

2. The applicant shall surrender his
passport to the concerned trial Court or before
this Court forthwith. His passport will remain in
custody of the concerned trial Court/with the
registry of this Court.

3. 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.

4. In case, the applicant misuses the
liberty of bail, the trial Court concerned may
take appropriate action in accordance with law.

5. 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 Cr.P.C. 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.

6. The party shall file computer
generated copy of such order downloaded from
the official website of High Court Allahabad.

7. The computer generated copy of
such order shall be self attested by the counsel
or the party concerned.

8.
The
concerned
Court/Authority/Official
shall
verify
the
authenticity of such computerized copy of the
order from the official website of High Court
Allahabad and shall make a declaration of such
verification in writing.

60. It is clarified that all the
observations contained in this order are
only for disposal of this anticipatory bail
application and shall not affect the trial
proceedings in any manner.
----------
(2020)03-05ILR A1311
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Crl. Misc. Ist Bail Application No. 3515 of 2020

Shailendra Kumar Gupta @ Shailu
 ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Rajiv Lochan Shukla, Sri Pramod Kumar
Dwivedi

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

A. Criminal law- The Narcotic Drugs and
Psychotropic Substance Act,1985-Sections
8/21-Code of Criminal Procedure,1973Section
439
-application-rejectionrecovery of 1 kg. 17 gram of charas from
the possession of applicant which is above
commercial quantity-applicant prayed he
has been falsely implicated due to enmity
as a civil suit is pending between the
parties- a case of public gambling also got