Allahabad High Court
Mohd Kamal Ahmad And Another vs State Of U.P. on 12 September, 2022
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8600 of 2022
Applicant :- Mohd Kamal Ahmad And Another
Opposite Party :- State of U.P.
Counsel for Applicant :- Vinod Kumar Tirpathi,Manoj Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicants, 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 by the applicants seeking anticipatory bail in Case Crime No. 03 of 2017, under sections- 147,188, 189, 332 IPC, Police Station Sherkot, District Bijnor.
Learned counsel for the applicants submits that applicants are innocent and have been falsely implicated in the present case due to enmity. It is further submitted the present matter pertains to year 2017 and the F.I.R. was lodged by the Tehsildar, Suresh Kumar against Mohd. Ghazi. The applicants were not named in the first information report. When the statements of witnesses under Section 161 Cr.P.C. was recorded then the name of the applicants are disclosed with the allegations that the applicants are supporter of the named accused, Mohd. Ghazi. During the course of the investigation, the applicants were never arrested and have fully co-operated in the investigation. It is further submitted that without collecting cogent and credible evidence the Investigating Officer filed charge sheet against the applicants in a routine manner. There is is no need of custodial interrogation.
The counsel for the applicants submits that however, no offence is made out against the applicants, hence, the applicants 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. The applicants have no criminal antecedents and they are ready to cooperate in the trial.
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 applicants.
Accordingly, the anticipatory bail application is hereby allowed.
In the event of arrest, the applicants- Mohd Kamal Ahmad & Mohd Sharik involved in the aforesaid case crime shall be released on anticipatory bail 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 applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code. The applicants shall cooperate in the investigation;
(iii) In case, the applicants misuse the liberty of bail and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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 applicants 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 their bail and proceed against them in accordance with law.
Order Date :- 12.9.2022
Aditya
