Shahnoor Khan vs State Of U.P. Thru. Secy. Home Lko. ...
2023 Latest Caselaw 2671 ALL

Citation : 2023 Latest Caselaw 2671 ALL
Judgement Date : 25 January, 2023

Allahabad High Court

Shahnoor Khan vs State Of U.P. Thru. Secy. Home Lko. ... on 25 January, 2023

Bench: Karunesh Singh Pawar




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2136 of 2022
 

 
Applicant :- Shahnoor Khan
 
Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And Another
 
Counsel for Applicant :- Narendra Gupta,Mohammad Salim Khan
 
Counsel for Opposite Party :- G.A.,Ambuj Kumar Singh,Arvind Kumar Singh
 

 
Hon'ble Karunesh Singh Pawar,J.

Counter Affidavit filed by learned A.G.A. is taken on record.

The present bail application under Section 438 Cr.P.C. has been filed seeking anticipatory bail in case crime No.252 of 2021 under sections 376, 504 I.P.C., P.S. Imaliya Sultanpur, district Sitapur.

Gist of the issue involved in the present matter is given in the order dated 10.1.2023 passed by this Court, which is extracted below:-

"The present bail application under Section 438 Cr.P.C. has been filed seeking anticipatory bail in case crime No.252 of 2021 under sections 376, 504 I.P.C., P.S. Imaliya Sultanpur, district Sitapur.

Heard learned counsel for the applicant and learned Additional Government Advocate for the State as also Mr. A.K. Singh, advocate who has filed vakalatnama on behalf of the private respondent, which is taken on record.

Learned counsel for the applicant submits that the applicant has been falsely implicated. As per the prosecution case and the statement of the prosecutrix under sections 161 and 164 CrPC, the prosecutrix who is 21 years old was in active physical relationship with the applicant for a period of three years. It is alleged that the applicant promised her to marry. When the applicant refused to marry the prosecutrix, N.C.R. has been registered against the applicant under sections 493, 504 I.P.C. which were non cognizable offence. Hence, the case should have been treated as a complaint case or in the alternative, the order should have been obtained from the Magistrate under section 155(2) CrPC. It is submitted that without following due procedure, the applicant was arrested and produced before the Magistrate for remand. The Magistrate refused to give remand vide order dated 6.7.2021. Later on, without following due procedure the N.C.R. has been converted into first information report and charge sheet has been filed under sections 376, 504 I.P.C..

It is submitted that even if the entire prosecution story is taken as it is, it is a matter of consensual relationship. No offence as alleged has been committed by the applicant. The applicant has no criminal history. The applicant apprehends arrest after filing of the charge sheet.

Learned A.G.A. and learned counsel for the complainant have opposed the bail prayer, however, they could not dispute the fact that the applicant has cooperated in the investigation.

Learned counsel for the applicant undertakes that the applicant shall cooperate in the trial.

List on 25.1.2023 after receipt of service report.

Considering the above aspects of the matter, perusal of the record, as also the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1 and without entering into the merit of the case, it would be appropriate to grant interim protection to the applicant under Section 438 Cr.P.C.

Till the next date of listing, it is provided that in the event of arrest/custody, the applicant shall be released on bail on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the arresting officer/trial Court concerned, subject to the following conditions :

(i) 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 tamper with the evidence;

(ii) The applicant shall not leave India without the previous permission of the court;

(iii)The applicant shall not pressurize/ intimidate the prosecution witness;

(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

Order Date :- 10.1.2023".

Heard learned Counsel for the applicant and learned A.G.A. for the State/respondent and Shri Pankaj Pandey, Advocate who has filed Vakalatnama on behalf of the complainant, which is taken on record as well as perused the record.

Learned A.G.A. for the respondent/State does not dispute the fact that NCR ought to have been registered under Section 493 and 504 I.P.C.

On due consideration to the fact that in stead of NCR the F.I.R. has been registered initially under Section 493 and 504 I.P.C. and the applicant was arrested who was released after intervention of the learned Magistrate; the applicant has no criminal antecedents; and without following due procedure charge-sheet under Section 376 and 504 I.P.C. has been filed; as also the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1, it would be appropriate to protect the liberty of the applicant.

In view of the above, the anticipatory bail application is allowed. It is provided that in the event of arrest, the applicant shall be released on bail on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial Court concerned, subject to the following conditions :