Allahabad High Court
Shan Mohammad vs State Of U.P. And 2 Others on 28 July, 2022
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6241 of 2022
Applicant :- Shan Mohammad
Opposite Party :- State Of U.P. And 2 Others
Counsel for Applicant :- Ankit Agarval,Dilip Kumar Patel
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicant, the learned Additional Government Advocate for the State and perused the record.
This anticipatory bail application under section 438 Cr.P.C. has been moved seeking anticipatory bail in Criminal Case No. 5444 of 2018 arising out of Case Crime No. 633 of 2015, under sections- 332/353/323/504/506 IPC, Police Station Kotwali Dehat, District Bulandshahar.
Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case. It is further submitted that a perusal of the FIR shows that the applicant is not named in the FIR. The applicant had no knowledge regarding the above offence and the charge-sheet against the applicant was filed on 27.8.2015 and thereby, the trial court took cognizance on 23.4.2018. Later on, summon of bailable warrant was issued against the applicant, but without service of notice/summon as well as bailable warrant, the trial court directly issued NBW against the applicant. When the police personnel of the concerned police station informed about the said proceedings, then, the applicant immediately obtained necessary papers and filed anticipatory bail application before the trial court, but the same was duly rejected by the trial court.
It is further submitted by the counsel for the applicant that during course of investigation, the applicant fully cooperated with the investigation. The applicant has no previous criminal history and he is ready to cooperated in the trial. However, no offence is made out against the applicant, hence, the applicant may be enlarged on anticipatory bail till conclusion of trial. In support of his submission, he has relied upon the judgement of Hon'ble Apex Court in the case of Aman Preet Singh vs. C.B.I. through Director, AIR 2021 Supreme Court 4154.
Learned A.G.A. has opposed the prayer for bail, but could not dispute the above facts.
I have considered the rival submissions advanced by learned counsel for the parties and perused the entire material available on record.
The Hon'ble Supreme Court in the case of Aman Preet Singh (Supra), the Court has observed as under:
"10. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.
11. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."
In Aman Preet Singh (supra), the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.
Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, I am of the opinion that it is a fit case for grant of bail to the applicant.
Accordingly, the anticipatory bail application is hereby allowed.
Let the applicant- Shan Mohammad be released on anticipatory bail by the trial Court till conclusion of trial on furnishing a personal bond and, two sureties each in the like amount to the satisfaction of the trial Court concerned with the following conditions:
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when 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;
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. The applicant shall cooperate in the investigation;
(iii) In case, the applicant misuses the liberty of bail and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them in accordance with law, under Section 174-A of the Indian Penal Code; and
(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 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.
Order Date :- 28.7.2022
Ashish
