Kapil Dev Rathi vs State Of Uttarakhand

Alok Kumar Verma, J

Present Application has been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with the Case Crime No. 80 of 2022, registered at police station Kotwali Uttarkashi, District Uttarkashi.

Applicant is in judicial custody under Sections 420, 406, 506 and Section 120B of the Indian Penal Code, 1860, Section 4 read with Section 22 of the Banning of Unregulated Deposit Schemes Act, 2019 and Section 3 of the Uttarakhand Protection of Interests of Depositors (In Financial Establishments) Act, 2005.

Heard Mr. Pawan Mishra, learned counsel for the applicant and Mr. Pramod Tiwari, learned Brief Holder for the State.

Mr. Pawan Mishra, Advocate, has submitted that the applicant is an innocent person. He has been falsely implicated in this matter. He is a permanent resident of District Jhajjar (Haryana), therefore, there is no possibility of his absconding, charge-sheet has already been filed, therefore, there is no chance of tampering with the evidence. Notice under Section 41 A of the Code of Criminal Procedure, 1973 (in short, “the Code”), was not given to him before his arrest. His arrest is in complete violation of the order of the Hon’ble Supreme Court, passed in Arnesh Kumar vs.State of Bihar and Another and Satender Kumar Antil vs. Central Bureau of Investigation and Another.

Learned counsel for the State has fairly conceded that notice under Section 41A of the Code was not given to the applicant.

Section 41 and Section 41A of the Code are facets of Article 21 of the Constitution of India. The Investigating Agencies and their Officers are duty bound to comply with the mandate of Section 41 and Section 41A of the Code.

In “Satender Kumar Antil vs. Central Bureau of Investigation and Another”, 2022 SCC Online SC 825, the Hon’ble Supreme Court held that any arrest made in violation of Section 41 and Section 41A of the Code would entitle the accused to bail. The directions issued by Hon’ble Supreme Court have to be complied with without any exception or justification.

Having considered the submissions of learned counsel for both the parties and in the facts and circumstances of the case, without expressing any opinion as to the merit of the case, this Court is of the view that the applicant deserves bail at this stage.

Bail Application is allowed.

Let the applicant – Kapil Dev Rathi be released on bail on his executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned with the following conditions :-

(i) Applicant shall attend the Trial Court regularly and he shall not seek any unnecessary adjournment;

(ii) Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case;

(iii) Applicant shall not leave the country without the previous permission of the Trial Court.

It is clarified that if the applicant misuses or violates any of the conditions, imposed upon him, application may be filed to cancel the bail order.