The Allahabad High Court while dealing with an anticipatory bail application filed under Section 438 of the Cr.PC. said that it is a staggering irony that the deponent of the counter affidavit i.e., the Deputy Superintendent of Police/ Circle Officer believed himself to be empowered with sanction to author a certificate of the propensity of a person without any cogent material.

The Government Counsel has been directed to remain present before the Court to "explain his conduct of dictating counter affidavit in such irresponsible manner".

The Court in this matter had earlier after hearing the submissions advanced by the counsel for the applicant granted interim protection in the year 2020 allowing two weeks' time for the State to file a counter affidavit.

A Single Bench of Justice Manju Rani Chauhan observed, “It is a staggering irony that deponent of counter affidavit, who is Deputy Superintendent of Police/ Circle Officer, Sahawar, District Kasganj, believed himself to be empowered with sanction to author a certificate of propensity of a person without any cogent material. Since 75th Independence Day Celebrations, Government has marked Azadi-ka-Amrit Mahotsav terming it to be 'Amrit Kaal' with prospective vision in welfare of citizens of the country, however, Police Administration feels more comfortable to remain with colonial structure.”

The Bench noted that such an attitude of functionaries who are instrumental to safeguard the public at large diminishes the ingrained belief in the system and plays a role in impeding the goal set out to ascend to new heights of prosperity.

Advocate Ajay Kumar Vashistha appeared on behalf of the applicant while AGA Akhilesh Kumar Srivastava appeared for the State.

In this case, the husband and father-in-law of the deceased were already acquitted by the court below. The counsel for the applicant passed on a certified copy of the acquittal order, which was returned to him, after perusal.

The applicant was the mother-in-law of the deceased. The two accused persons were acquitted by the court below and interim protection to the applicant by the High Court in the offence under Sections 498A, 304-B, and 201 of the IPC and 3/4 of the D.P. Act required attention of the Court to traverse to the pleadings of both anticipatory bail as well as a counter affidavit.

The High Court in this matter observed, “Bare perusal of reply given to the averments of anticipatory bail application in counter affidavit appears to be perfunctory and cavalier in manner as also bereft of any cogent or coherent factual and legal foundation as the Government Counsel Sri I.P.S. Rajpoot, AGA-I, (AOR-A/I-0034/2012) who drafted the affidavit did not hesitate in proving the applicant to be of criminal mind without adducing any substance in support thereof.”

The Court further asserted that it cannot turn a blind eye to such imprecise conduct of the deponent as well as the Government Counsel brought in the counter affidavit and that the reply quietly appears to be a transcription of para-wise narratives sent by the concerned department.

“A bare reading of the averments in counter affidavit whereby the applicant is said to be of criminal intent appears to be on the basis of skewed information. No such officer is allowed to enjoy impunity on the pretext of discharging official functioning nor can be set free to form an audacious remark without any basis. It is the prime duty of the concerned A.G.A. also who drafts counter affidavit to acquire the material relying on which the averments being made in counter affidavit”, the Court said.

The Court gave ten days’ time to the deponent for filing a personal affidavit stating what was in his possession for making a statement in the counter affidavit.

The Court, therefore, listed the matter on February 21, 2023.

Cause Title- Chantara v. State of U.P.

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