Nazim @ Kubda vs State Of U.P.
2022 Latest Caselaw 3393 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 69
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3880 of 2022
 

 
Applicant :- Nazim @ Kubda
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mashaluddin Shah
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mohd. Faiz Alam Khan,J.

It is informed by learned A.G.A. that complete case diary of the case is available. Thus, in the opinion of this Court, the anticipatory bail application moved on behalf of the applicant could be finally disposed of.

Heard learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.

The instant application has been moved by the applicant- Nazim @ Kubda for grant of anticipatory bail, in Case Crime No.794 of 2019, under Sections 147, 148, 149, 307, 395, 323, 332, 353, 427, 336, 188 I.P.C. & 7 of the Criminal Law Amendment Act & 3/4 of the Prevention of Public Property Act, Police Station Rasulpur, District Firozabad with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

Learned counsel for the accused-applicant while pressing the anticipatory bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.

It is further submitted that after lodging of the F.I.R., the applicant has approached this Court by filing Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No.9518 of 2020, wherein a Coordinate Bench of this Court vide order dated 18.12.2020 was pleased to grant protection from arrest till submission of police report under Section 173(2) Cr.P.C. It is also submitted that in compliance of the directions of the Coordinate Bench of this Court, the applicant has cooperated in the investigation and therefore, there was no occasion for the investigating officer to have arrested him and the charge sheet has now been filed without making arrest of the applicant. The applicant is not having any criminal history to his credit. Identically placed co-accused persons namely Hazi Tausif and Sohrab has been granted anticipatory bail by Coordinate Benches of this Court vide orders dated 13.05.2022 passed in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. Nos. 3706 of 2022 and 3788 of 2022, respectively. The applicant is a law abiding citizen and there is no apprehension that after being released on anticipatory bail he may flee from the course of law or may otherwise misuse the liberty.

Learned A.G.A. on the other hand, however, opposes the prayer of anticipatory bail of the applicant on the ground that charge-sheet has been submitted in this case and having regard to the role played by the applicant in the commission of the crime, he is not entitled for any protection from arrest.

In Siddharam Satlingappa Mhetre Vs State of Maharashtra and Ors., MANU/SC/1021/2010 Hon'ble Supreme Court has laid down parameters for consideration of anticipatory bail prayer of an applicant in the following words:-

"1 ........... The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.

122 . The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

iii. The possibility of the applicant to flee from justice;

iv. The possibility of the accused's likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

123. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.

124. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.

125. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available.

126 . Irrational and Indiscriminate arrest are gross violation of human rights. In Joginder Kumar's case (supra), a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.

127. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.

The Apex Court in the Constitution Bench judgment of Sushila Aggarwal and Ors. Vs. State (NCT of Delhi) and Ors., MANU/SC/0100/2020 framed following two questions for its consideration and has answered these questions as follows:-

"91. This Court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications Under Section 438, Code of Criminal Procedure:

(1) Consistent with the judgment in Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab MANU/SC/0215/1980 : 1980 (2) SCC 565, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

(2) It may be advisable for the court, which is approached with an application Under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

(3) Nothing in Section 438 Code of Criminal Procedure, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified - and ought to impose conditions spelt out in Section 437(3), Code of Criminal Procedure [by virtue of Section 438(2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

(4) Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

(5) Anticipatory bail granted can, depending on the conduct and behavior of the Accused, continue after filing of the charge sheet till end of trial.

(6) An order of anticipatory bail should not be "blanket" in the sense that it should not enable the Accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

(7) An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.

(8) The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the Accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya.

(9) It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction Under Section 439(2) to arrest the Accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.

(10) The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.

(11) The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam & Etc. Etc v. Ramprasad Vishwanath Gupta and Anr. MANU/SC/0616/2011 : (2011) 6 SCC 189; Jai Prakash Singh (supra) State through C.B.I. v. Amarmani Tripathi MANU/SC/0677/2005 : (2005) 8 SCC 21). This does not amount to "cancellation" in terms of Section 439(2), Code of Criminal Procedure.

(12) The observations in Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. MANU/SC/1021/2010 : 2011 (1) SCC 694 (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra (MANU/SC/0280/1996 : 1996 (1) SCC 667) and subsequent decisions (including K.L. Verma v. State and Anr. MANU/SC/1493/1998 : 1998 (9) SCC 348; Sunita Devi v. State of Bihar and Anr. MANU/SC/1032/2004 : 2005 (1) SCC 608; Adri Dharan Das v. State of West Bengal MANU/SC/0120/2005 : 2005 (4) SCC 303; Nirmal Jeet Kaur v. State of M.P. and Anr MANU/SC/0695/2004 : 2004 (7) SCC 558.; HDFC Bank Limited v. J.J. Mannan MANU/SC/1923/2009 : 2010 (1) SCC 679; Satpal Singh v . the State of Punjab MANU/SC/0413/2018 and Naresh Kumar Yadav v. Ravindra Kumar MANU/SC/8067/2007 : 2008 (1) SCC 632) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.

92. The reference is hereby answered in the above terms."

Having heard learned counsel for the parties and having perused the record, it may be recalled that the anticipatory bail application even after submission of the charge-sheet is maintainable, if the applicant is having an apprehension that he would be arrested in pursuance of the process issued by the Court. Reference in this regard can be taken of Bharat Chaudhary and others Vs. State of Bihar, (2003) 8 SCC 77 (SC) and Ravindra Saxena vs. State of Rajasthan (2010) 1 SCC 684. Thus, submission of the charge-sheet is not a hindrance in considering the prayer of anticipatory bail of an accused person.

It has been specifically stated that the applicant had earlier approached this Court by filing Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No.9518 of 2020, wherein a Coordinate Bench of this Court vide order dated 18.12.2020 was pleased to grant protection from arrest till submission of police report under Section 173(2) Cr.P.C. subject to certain conditions. It appears that the applicant has cooperated in the investigation and thus there was no occasion for the investigating officer to have arrested the applicant. Identically placed co-accused persons namely Hazi Tausif and Sohrab has been granted anticipatory bail by Coordinate Benches of this Court. Thus, on the principle of parity, the instant applicant may also be granted the same facility.

Thus, having regard to all the facts and circumstances of the case and keeping in view the law laid down by the Hon'ble Supreme Court in the above-mentioned two cases, in the considered opinion of this Court, protection from arrest could be granted to the applicant.

Having regard to the special circumstances mentioned herein-above, the instant application is allowed and it is directed that in the event of arrest of the applicant namely Nazim @ Kubda involved in the above noted case or on his appearance before the court below, he shall be released forthwith on anticipatory bail on his 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/ Investigating Officer/trial court with the following conditions:-

(1) The applicant shall make himself available for interrogation or for discovery of any fact by a police officer as and when required, if any investigation or further investigation is pending.

(2) 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 them from disclosing such facts to the Court or to any police officer;

(3) The applicant shall not leave the country without the previous permission of the Court.

(4) The applicant shall remain present before the trial court as and when required and will not take unnecessary adjournments specially when the prosecution witnesses are present.

Order Date :- 19.5.2022

Anupam S/-