Subhash Vidyarthi, J.

1. Heard Sri Satendra Nath Rai, the learned counsel for the applicant, Sri Jayant Singh Tomar, the learned AGA-I for the State, Sri Desh Deepak Singh, the learned counsel for the informant and perused the records.

2. The aforesaid three applications have been filed 4 persons belonging to a family, all of whom have been made accused in Case Crime No. 523 of 2022, under Sections 406, 420, 467, 468, 471 IPC, Police Station Palia, District Lakhimpur Kheri. The F.I.R. alleges that the informant had entered into an agreement dated 02.07.2022 to purchase immovable properties from Gurwinder Kaur - the applicant in Criminal Misc. Anticipatory Bail Application No. 2095 of 2023, and her husband Surendra Singh - the application ABAIL No. 2097 of 2023 for a total sale consideration of Rs. 1.57 Crores. The informant had transferred Rs. 5 lakhs through RTGS to the bank account of Smt. Gurwinder Kaur and Rs.5 Lakhs were paid through cheque to Surendra Singh. The sale deed was agreed to be executed within a period of two months i.e. till 02.09.2022 but the sellers did not execute the sale deed. The co-accused persons and Harkirat Singh and Jaskirat Singh – the applicants in ABAIL No. 2107 of 2023 are sons of the other two accused persons and it is stated that they were present at the time of execution of sale agreement.

3. A copy of the sale agreement dated 02.07.2022 has been annexed with the affidavit filed in support of the application, which shows that the agreement has been executed on a stamp paper worth Rs. 100/- only and it is not registered.

4. The accused persons had filed Criminal Misc. Writ Petition No. 7159 of 2022 and by means of an interim order dated 27.09.2022 a Division Bench of this Court had stayed their arrest. The Writ Petition was disposed off by means of an order dated 25.04.2023 after taking into consideration the fact that a charge sheet had been forwarded to the supervisory authority on 24.03.2023. Thereafter the applicant filed an application under Section 482 Cr.P.C. No. 6037 of 2023 wherein an interim order was passed on 20.06.2023 staying proceedings of Case No. 5908 of 2023. The petition was disposed of by means of an order dated 23.08.2023 providing that if the applicants appear before the court below within 30 days and apply for bail, their prayer for bail shall be considered and decided in accordance with law and the applicants shall not be arrested for a period of 30 days.

5. The applicants filed applications for anticipatory bail, which have been rejected by the Session Court by means of a common order dated 15.09.2023 and thereafter the applicants have approached this Court by filing applications under Section 438 Cr.P.C.

6. The learned counsel for the informant has submitted that this Court had directed the applicants to appear and apply for bail whereas the applicants have applied for anticipatory bail, which is in violation of the direction issued by this Court.

7. The direction was to appear and apply for bail. The applicants filed an application for anticipatory bail. Anticipatory bail is also a bail and there is no difference in anticipatory bail and regular bail except for the stage at which the same are sought. An anticipatory bail is a bail sought in anticipation of arrest, prior to the applicant been taken into custody whereas regular bail is sought after the applicant is taken into custody.

8. In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, [LQ/SC/2020/137] the Hon’ble Supreme Court explained the difference between bail and anticipatory bail in the following words: -

“49. The term “anticipatory bail” finds no place in CrPC itself but was used by the Law Commission of India in its 41st Report. The term was used to convey that it was an application for bail in anticipation of arrest i.e. before the arrest itself is made. Grant of bail, according to Wharton’s Law Lexicon, and as noticed in Sibbia (Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565) [LQ/SC/1980/169] , means to “set at liberty a person arrested or imprisoned, on security being taken for his appearance”. Sibbia, observed thus :

“7. … The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory bail, constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. Section 46(1) of the Criminal Procedure Code which deals with how arrests are to be made, provides that in making the arrest, the police officer or other person making the arrest ‘shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action’. A direction under Section 438 is intended to confer conditional immunity from this “touch” or confinement.”

9. Therefore, I am of the view that the conduct of the applicant in filing an application for anticipatory bail is not in violation of the order dated 23.08.2023 passed by this Court.

10. Moreover, persons apprehending their arrest have a statutory right to file an application for anticipatory bail under relevant provisions of Code of Criminal Procedure which right cannot be curtailed or taken away except by the conditions imposed by law itself. The law does not bar filing of an anticipatory application merely because an application under Section 482 Cr.P.C. had been filed and disposed of giving a liberty to the accused persons to file an application for bail.

11. In Kamlesh v. State of Rajasthan, 2019 SCC OnLine SC 1822, the Rajasthan High Court had rejected the application for anticipatory bail only on the ground that petition under Section 482 Cr.P.C., praying for quashing of FIR, has already been rejected. The Hon’ble Supreme Court set aside the order passed by the High Court holding that:-

“5. We are of the view that the order of the High Court cannot be sustained. High Court ought to have considered the application on merits. The fact that petition under Section 482 Cr.P.C. was dismissed for quashing was not conclusive and could not be the reason for rejecting the application…”

12. Therefore, the dismissal of the application under Section 482 Cr.P.C. would have no effect on the statutory right of the applicant to seek anticipatory bail under Section 438 Cr.P.C.

13. The second submission of the learned counsel for the informant is that there is no real apprehension of arrest of the applicants.

14. The informant has alleged commission of offences under Sections 406, 420, 467, 468, 471 IPC by the accused persons, all of which are non-bailable offences. Therefore, the submission that there is no real apprehension of arrest of the applicants is misconceived. Moreover when this Court had previously stayed arrest of the applicants in a writ petition filed by them for quashing of the FIR and thereafter in an application under Section 482 Cr.P.C. seeking quashing of the chargesheet, which stay has come to an end on 25.09.2023, the applicants have every reason to believe that they may be arrested on the accusation of having committed non bailable offences. Therefore, I find no force in the second submission of the learned counsel for the informant that the applicants have no apprehension of being arrested.

15. The learned counsel for the informant has next submitted that in the interim order dated 27.09.2022 passed in Criminal Misc. Writ Petition No. 7159 of 2022, this Court had directed the petitioners to cooperate with the investigation and to get their statements recorded before the Investigating Officer on 10.10.2022 and the applicants did not comply with this direction.

16. After final disposal of the writ petition and thereafter of the application under Section 482 Cr.P.C., the direction made in the interim order loses significance and the application under Section 438 Cr.P.C. has to be considered in accordance with the law, taking into consideration all the relevant factors.

17. Having dealt with the preliminary objections raised by the learned counsel for the informant, I proceed to consider the merits of the applications.

18. In the FIR dated 08.09.2023, the informant has alleged that Smt. Gurwinder Kaur and Surendra Singh, the applicants in ABAIL Nos. 2095 of 2023 and 2097 of 2023, have not executed a sale deed in furtherance of an agreement of sale dated 02.07.2022. The aforesaid agreement dated 02.07.2022 having been executed on a stamp paper worth Rs. 100/- only, suffers from deficiency of stamp duty and it is liable to be impounded. Moreover, the agreement to sell immovable property far exceeding the value of Rs. 100/-, was mandatorily required to be registered and its non-registration renders it inadmissible evidence and no rights arising out of an agreement which is inadmissible in evidence, can be enforced in a court of law.

19. The learned counsel for the informant has submitted that the informant did not get the agreement registered because it was the applicants themselves who had forbidden him from getting the agreement registered as they had assured that they would execute a sale-deed and get it registered.

20. The responsibility for payment of registration fee and stamp duty lies on the informant, who is neither a minor nor a person under some legal disability and he is responsible for his own actions. The defence put up by the learned counsel for the informant that the informant did not get the agreement registered having been forbidden by the informant, is unsustainable and is rejected.

21. The conduct of the informant in entering into an agreement to purchase property worth Rs. 1.57 Crores without payment of proper stamp duty and without payment of registration fee, has resulted in the public at large being deprived of the benefits of the amounts payable as registration fee and stamp duty.

22. The agreement to sell being unregistered and it being inadmissible in evidence in a suit filed for its specific performance, the informant set the criminal law into motion for filing an FIR while filing a civil suit for redressal of his grievances would have required payment of courtfee to the public exchequer, which again would have benefitted the public at large.

23. The F.I.R. has apparently been filed with an ulterior motive of putting undue pressure on the applicants to redress the informant’s civil grievances, for which a civil suit could only have succeeded had the agreement been registered but the civil suit is bound to fail because it would be based on an inadmissible evidence.

24. Keeping in view the aforesaid facts, coupled with the fact that the Smt. Gurwinder Kaur is a 69 years old woman having no criminal history, I am of the view that she is entitled to be granted anticipatory bail.

25. Regarding Surendra Singh, the applicant in ABAIL No. 2097 of 2023, the learned counsel for the informant has stated that he has concealed his involvement in FIR No. 1016 of 2016, under Section 306 IPC. The learned counsel for the applicant as also the learned AGA-I have expressed ignorance about the aforesaid case, which has not been disclosed even in the instructions received by the learned AGA-I. When the applicant is not having knowledge of involvement in a criminal case and even the State is ignorant about his involvement, the alleged involvement of the applicant in such a case will not bar this Court from exercising its discretion by granting anticipatory bail to the applicant, when the other factors, including the principle of grant of anticipatory bail on the ground of parity, warrant grant of discretion in favour of the applicant. Therefore, Surendra Singh, the applicant in ABAIL No. 2097 of 2023, is also entitled to be granted anticipatory bail.

26. Harkirat Singh and Jaskirat Singh – the applicants in ABAIL No. 2107 of 2023, are sons of the other two accused persons and it is stated that they were also present at the time of execution of the sale agreement and no other allegation has been leveled against them. Therefore, these two applicants are also entitled to be granted anticipatory bail.

27. In view of the above, all the three the anticipatory bail applications are allowed. In the event of arrest/ appearance of applicants - Gurwinder Kaur, Surendra Singh, Harkirat Singh and Jaskirat Singh before the S.H.O. / the learned Trial Court in Case Crime No. 523 of 2022, under Sections 406, 420, 467, 468, 471 IPC, Police Station Palia, District Lakhimpur Kheri, they shall be released on anticipatory bail on furnishing a personal bond and two sureties, to the satisfaction of S.H.O./Court concerned on the following conditions and subject to any other conditions that may be fixed by the Trial Court:

(i) That the applicants 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 or tamper with the evidence;

(ii) That the applicant shall not pressurize/ intimidate the prosecution witness.

(iii) That the applicants shall co-operate with the proceedings of trial.