Allahabad High Court
Dhoop Nath And Another vs State Of U.P. And 4 Others on 5 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:230310
Court No. - 73
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12392 of 2023
Applicant :- Dhoop Nath And Another
Opposite Party :- State Of U.P. And 4 Others
Counsel for Applicant :- Sanjay Kumar Srivastava
Counsel for Opposite Party :- G.A.,Gunjan Sharma
Hon'ble Nalin Kumar Srivastava,J.
1. Heard learned counsel for the applicants, learned A.G.A. for the State as well as Ms. Gunjan Sharma, learned counsel for the first informant from High Court Legal Service Committee and perused the record.
2. This application has been moved on behalf of the applicants - Dhoop Nath and Sonu Patel seeking anticipatory bail in Case Crime No.157 of 2023, under Sections 323, 354, 354-B, 452, 324 & 504 IPC and Section 7/8 POCSO Act, Police Station Rauna Par, District Azamgarh.
3. It is alleged in the F.I.R. that on 22.5.2023 at about 5:00 A.M., present accused applicants along with co-accused Sonu and two other persons entered into the house of the informant and tried to forcibly take away the minor daughter of the informant and she was also assaulted by them and they also snatched the golden locket from the minor victim and a video of the incident was also prepared by a lady. When the police did not lodge the F.I.R., an application u/s 156 (3) Cr.P.C. was moved and by order of the court, F.I.R. was lodged on 22.5.2023 under Sections 323, 354, 354-B, 452, 324 & 504 I.P.C. and Section 7/8 POCSO Act and after investigation charge-sheet has been submitted.
4. Learned counsel for the applicants submits that applicants are innocent and they have apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against them. They have been falsely implicated in this matter. Allegations levelled against the applicants are false. It is further submitted that civil suits are pending between the parties and in the suit filed by the applicants side, an injunction order has been passed in their favour whereas in the suit filed from the informant side, no stay order has been passed by the court. It is further submitted that earlier an F.I.R. on the basis of false facts was lodged by the informant side against the applicants and a criminal complaint was also filed by the present applicants against the informant side which is pending. It is further submitted that due to animosity of the litigation, the applicants have been falsely roped in this case. It is further submitted that there is no independent eyewitness of the occurrence and only simple injuries have been found over the body of the injured. No sexual assault has been made upon her. It is further submitted that the applicant has no criminal antecedents to his credit.
5. Learned A.G.A. as well as learned counsel for the informant vehemently opposed the prayer for anticipatory bail and it has been submitted that in the present case, assault has been made upon the minor daughter of the informant and she has been physically harassed also by the accused persons. The injured has sustained several injuries.
6. In the present case, the applicants have cooperated with the investigation of the case and he is having no criminal history. Only simple injuries have been found on the body of the injured. The applicants have been granted anticipatory bail during investigation of the case in Crl. Misc. Anticipatory Bail Application No. 7788 of 2023 and Crl. Misc. Anticipatory bail application no. 8571 of 2023 vide orders dated 13.07.2023 and 10.08.2023, respectively and the said liberty has not been misused by the applicants.
7. 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 applicants 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 applicants till end of the trial in the matter.
10. The anticipatory bail application is allowed.
11. In the event of arrest of the applicants in the aforesaid case crime, they shall be released on anticipatory bail till end of the trial on their 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 applicants shall make themselves available before the court concerned on the date fixed in the matter;
(ii) The applicants 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 applicants shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them 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 applicants.
Order Date :- 5.12.2023
Vibha
