HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 77 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9871 of 2022 Applicant :- Azam Ali Khan Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Suresh Pratap Singh,Kunwar Abhishek Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Suresh Pratap Singh, learned counsel for the applicant and Sri Amit Singh Chauhan, learned A.G.A. for the State as well as perused the record.
This anticipatory bail application under section 438 Cr.P.C. has been moved by the applicant seeking anticipatory bail in Criminal Case No. 226 of 2021 arising out of Case Crime No. 194 of 2019, under sections- 436 and 427 IPC, Police Station Mandawar, District Bijnor.
On 03.11.2020, the following order was passed:-
"1. Heard Mr.Mahipal Singh, learned counsel for applicant and learned A.G.A. for State.
2. Learned counsel for applicant filed a supplementary affidavit today in Court, which is taken on record.
3. This application for anticipatory bail has been filed by applicant Azam Ali Khan in connection with Case Crime No. 194 of 2019, under Sections 436, 427, 395 IPC, Police Station-Mandawar, District-Bijnor.
4. Perusal of record shows that in respect of an incident, which is alleged to have occurred on 26.06.2016, an F.I.R. was promptly lodged on 27.06.2019 by first informant Mohd. Javed , which was registered as Case Crime No. 194 of 2019, under Sections 436, 427, 395 IPC, Police Station-Mandawar, District-Bijnor. In the aforesaid F.I.R. five persons namely Azam Ali Khan, Jamshed Ali Khan, Wasi Shah, Usman Alvi and akram Kuraishi were nominated as the named accused.
4. As per the prosecution story as unfolded in the F.I.R. it is alleged that accused persons came at the brick-klin of the informant and torched his four wheeler vehicle, which was standing at the brick-klin, bearing Registration No. UK 07BB5004 and his Tractor bearing Registration No. U.P.20B3660. It is further alleged in the F.I.R. that accused persons took away the some of the goods and cash of Rs. 15000/- kept in the rack adjacent to the table of the informant.
5. Learned counsel for applicant submits that applicant is innocent and has been falsely implicated in above mentioned case crime number on account of old enmity. He then submits that the applicant no. 3 is a practicing advocate at Bijnor. He further contends that in the F.I.R. Number of Tractor mentioned is U.P. 20B3660 whereas the aforesaid registration number of two wheeler. He relied upon the vehicle number issued by Regional Transport Officer, Bijnor (Annexure 4 to the writ petition). He further contends that the F.I.R. was lodged on 27.06.2019 but in spite of the fact that a period of more than 12 months have rolled by from the date of lodging of F.I.R., no police report in terms of Section 173 (2) Cr. P. C. has been submitted till date. It is then urged that investigation is still going on but police has not collected any material up to this stage on the basis of which complicity of present applicant can be said to be established in above mentioned case crime number. He therefore, contends that investigation is still going on and applicant is co-operating with investigation, therefore no coercive process has been issued against applicant. As such custodial arrest of applicant is not absolutely necessary for investigating above mentioned case crime number. Applicants have no criminal antecedents to his credit yet there is definite apprehension of his being arrested by the Police. As such liberty of applicant is liable to be protected by this Court by extending the benefit of anticipatory bail in his favour.
6. Per contra, learned A.G.A. has vehemently opposed the present application for anticipatory bail, but he could not dispute the the facts as noted above as well as the factual and legal submissions urged by learned counsel for applicant.
7. Having heard learned counsel for applicant, learned A.G.A. for State and upon perusal of material brought on record and complicity of applicant but without expressing any opinion on merits of the case, applicant has made out a case.
8. Matter requires consideration.
9. Notice on behalf of opposite party no. 1 has been accepted by learned A.G.A.
10. Issue notice to opposite party no.2.
11. All the opposites parties may file their respective counter affidavits on or before the date fixed in the notice.
12. List on the date fixed in the notice.
13. Till the next date of listing applicant shall not be arrested in connection with Case Crime No. 194 of 2019, under Sections 436, 427, 395 IPC, Police Station-Mandawar, District-Bijnor."
Subsequently on 07.04.2021 the anticipatory bail application was allowed with the observation that the applicant will remain on anticipatory bail till cognizance is taken by the court on the police report u/s 173 (2) Cr.P.C. on same terms and conditions as mentioned in the order dated 03.11.2020.
Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case and he has an apprehension that he may be arrested in the above-mentioned case, whereas there is no credible evidence against them. Several other submissions have been made on behalf of the applicants to demonstrate the falsity of the allegations made against them. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. Learned counsel for the applicant undertakes that he has co-operated in the investigation and is ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail.
Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application but unable to dispute the submissions raised by the learned counsel for the applicant.
On due consideration to the arguments advanced by learned counsel for the applicant as well as learned A.G.A. and considering the nature of accusations and antecedents of the applicant, the applicant is liable to to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5 SCC 1". The future contingencies regarding the anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
In view of the above, the anticipatory bail application of the applicant is allowed. Let the accused-applicant- Azam Ali Khan be released forthwith in the aforesaid case crime (supra) on anticipatory bail till the conclusion of trial on furnishing a personal bond of Rs. 50,000/- and two sureties each in the like amount to the satisfaction of the Station House Officer of the Police Station concerned/court concerned with the following conditions:-
1. The applicant shall not tamper with the evidence during the trial.
2.The applicant shall not pressurize/ intimidate the prosecution witness.
3.The applicant shall appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. 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 or tamper with the evidence.
It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial. In case of breach of any of the above condition, the Court below shall be at liberty to cancel bail of applicant in accordance with law.
Order Date :- 4.1.2023 Arti