Allahabad High Court
Akhtar Mohammad vs State Of U.P. And Another on 1 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:230304
Court No. - 73
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11694 of 2023
Applicant :- Akhtar Mohammad
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ansar Ahmad
Counsel for Opposite Party :- G.A.,Gyanendra Prasad Mahant
Hon'ble Nalin Kumar Srivastava,J.
1. Supplementary affidavit filed today is taken on record.
2. Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the informant and perused the material available on record.
3. Apprehending his arrest, the present anticipatory bail application has been filed on behalf of the applicant - Akhtar Mohammad in Case Crime No.151 of 2023, under Sections 498-A, 420, 506 I.P.C. and 3/4 Muslim Women (Protection of Rights on Marriage) Act, 2019, Police Station Akrabad, District Aligarh, with a prayer to enlarge him on anticipatory bail.
4. The informant / victim was ill-treated by her husband and talak notice was also given to her by her husband, the present applicant. F.I.R. was lodged on 22.3.2023 and now charge-sheet has been submitted in the matter.
5. It is submitted by the learned counsel for the applicant that the applicant is innocent and he has apprehension of his arrest in the above-mentioned case, whereas there is no credible evidence against her. He has been falsely implicated into this matter. Allegations levelled against the applicant are false. The investigation of the case has been completed and charge-sheet has been filed. It is further submitted that there is no allegation in the F.I.R. that when and how cruelty was committed with the informant / victim by the present applicant or his family members. It is also submitted that triple talak although has been offered by the applicant to the informant / victim, but it has been given in three successive notices and not at one time. It is also submitted that prior to this F.I.R., a first information report was already lodged by the present informant / victim against her in-laws including the present applicant bearing almost same allegations and with an ulterior motive, the present F.I.R. has also been lodged without any justifiable ground. It is also submitted that the applicant is already on bail in the earlier instituted criminal case. It is also submitted that the informant has already preferred an application u/s 125 Cr.P.C. and also an application under section 12 of the Domestic Violence Act against the present applicant. It is also submitted that the notices regarding talak were issued on 14.10.2022, 21.11.2022 and 19.1.2023 in three sittings and reply was also sent by the informant / victim in respect of first and second talak notice. It is also submitted that the applicant has been cooperative during the course of investigation and the offence alleged against him is punishable with an imprisonment for a maximum period of seven years and as such he is entitled for anticipatory bail.
6. Per contra, learned A.G.A as well as learned counsel for the informant opposed the prayer for anticipatory bail, but however could not dispute this fact that during investigation the applicant has been throughout cooperative.
7. Although charge-sheet has been submitted in the matter, but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.
It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
It has been further held by the Hon'ble Apex Court that 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. It has further been held that 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.
8. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex Court has held that :
"11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87CrPC that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.
12. Insofar as the present case is concerned and the general principles under Section 170CrPC, 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 are itself sufficient to entitle him to be released on bail. 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."
9. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till end of the trial in the matter.
10. The anticipatory bail application is allowed.
11. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail till end of the trial on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :-
(i) The applicant shall make himself available before the court concerned on the date fixed in the matter;
(ii) 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 / her from disclosing such facts to the Court or to any police officer;
(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.
12. In case of default of any of the conditions, same may be a ground for cancellation of protection granted to the applicant.
Order Date :- 1.12.2023
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