Allahabad High Court
Mohammad Tabish vs State Of U.P. on 27 April, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3158 of 2023
Applicant :- Mohammad Tabish
Opposite Party :- State of U.P.
Counsel for Applicant :- Rakesh Kumar Garg,Yash Garg
Counsel for Opposite Party :- G.A.,Shubham Dwivedi,Tejasvi Misra
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Supplementary affidavit filed today is taken on record.
3. Heard Sri Yash Garg, learned counsel for the applicant, Sri Shubham Dwivedi, learned counsel for the informant and Sri V.K. Gupta, learned A.G.A. for the State as well as perused the record.
4. The present anticipatory bail application has been filed on behalf of the applicant in Case Crime No.293 of 2022 registered under Section 3 and 4 of Muslim Women (Protection of Rights on Marriage) Act, 2019 at Police Station- Civil Lines, District Aligarh with a prayer to enlarge him on anticipatory bail.
5. As per prosecution story, the marriage of the applicant is stated to have been solemnized with the informant as per Muslim Rites on 08.01.2020 and a son was born out of the said wedlock, who is living with his mother. The applicant is stated to have filed a petition in the Family Court, Aligarh on 21.01.2022 for dissolution of said Nikah. Despite the said petition, the applicant is stated to have pronounced triple talaq to her on 08.05.2022.
6. Learned counsel for the applicant has stated that the applicant has been falsely implicated in the present case. The allegations in the FIR are per se false as it is indicated in it itself that the applicant has already filed a case of dissolution of marriage on 21.01.2022, then no question arises for pronouncing a triple talaq to her. Had it been so, he would have done it earlier itself and would not have filed a petition in the Family Court, Aligarh.
7. Learned counsel has further stated that it is true that he had filed a petition u/s 482 Cr.P.C. before this Court, which was dismissed and a direction was given to file a bail application before the court concerned which shall be decided within a period of seven days. Learned counsel has further stated that word 'bail application' includes the anticipatory bail application. The applicant has been put to double jeopardy by the informant as she has instituted two FIRs' against him. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no previous criminal history of the applicant except one case under Section 498-A filed by the same first informant. The said matter is of family discord and the applicant is on bail in the said Case Crime No.27 of 2022 vide order dated 13.03.2023. The applicant has apprehension of his arrest. 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.
8. Per contra, learned counsel for the informant and learned A.G.A. have vehemently opposed the anticipatory bail application on the ground that the applicant has already relinquished the opportunity granted u/s 482 Cr.P.C. and the final report (charge-sheet) has already been filed, as such he is not entitled for bail in the light of the judgment of this Court passed in case of Shivam vs. State of U.P. and Another on 05.04.2021. Learned counsel for the informant has further stated that the applicant is not cooperating with the trial of the case filed under D.P. Act and Section 125 Cr.P.C.
9. It is true that this Court has opined in the judgment of Shivam (supra) that the Court should circumspect in entertaining anticipatory bail application after the applicant has already availed the opportunity u/s 482 Cr.P.C., but the present case is on a different footing as the FIR itself indicates the said allegations to be contradictory.
10. On due consideration to the arguments advanced by learned counsel for the applicant as well as learned A.G.A., and taking into consideration the fact that a petition for dissolution of marriage has already been filed in the Family Court and considering the nature of accusations and antecedents of the applicant and also the fact that para-41 of Shivam (supra) applies to the present case, the applicant is liable 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.
11. In view of the above, the anticipatory bail application of the applicant is allowed. Let the accused-applicant- Mohammad Tabish be released forthwith in the aforesaid case crime (supra) on anticipatory bail till the conclusion of trial on furnishing a personal and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i). that the applicant shall make himself available for interrogation by a police officer as and when required;
(ii). that 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;
(iii). that the applicant shall not leave India without the previous permission of the court;
(iv). that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;
(v). that the applicant shall not pressurize/ intimidate the prosecution witness;
(vi). that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
(vii). that in case of breach of any of the above conditions the court below shall have the liberty to cancel the bail.
12. It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial.
(Krishan Pahal, J.)
Order Date :- 27.4.2023
Ravi Kant
