Allahabad High Court
Vijay Nishad And 5 Others vs State Of U.P. And Another on 31 March, 2023
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 85
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3501 of 2023
Applicant :- Vijay Nishad And 5 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sanjay Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Siddharth,J.
Heard learned counsel for the applicants and learned AGA for the State.
The instant anticipatory bail application has been filed on behalf of the applicants, Vijay Nishad, Angad Nishad, Lala Nishad @ Lalji, Jamvant Nishad, Jhinnu Nishad and Mahetiya @ Maheshiya with a prayer to release them on bail in Case Crime No. 0062 of 2023 , under Sections 498-A,323, 354Kha,313 IPC, and 3/4 D.P. Act Police Station- Gida, District- Gorakhpur.
There is allegation against the applicants of torturing the victim for non-fulfillment of demand of dowry.The applicants caused injury on her stomach due to above reason the child in the womb was aborted.
Learned AGA has opposed the prayer for anticipatory bail of the applicants. He has submitted that in view of the seriousness of the allegations made against the applicants, they are not entitled to grant of anticipatory bail. The apprehension of the applicants are not founded on any material on record. Only on the basis of imaginary fear anticipatory bail cannot be granted.
After considering the rival submissions this court finds that there is a case registered/about to be registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349 the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative.
According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicants, they are directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicants shall also be taken care of as per the aforesaid judgment of the Apex Court.
The anticipatory bail application with regard to applicant no.4,Jamvant Nishad, is rejected.
In the event of arrest, the applicant Nos.1,2,3,5 and 6, namely, Vijay Nishad,Angad Nishad, Lala Nishad @ Lalji, Jhinnu Nishad and Mahetiya @ Maheshiya shall be released on anticipatory bail till the submission of police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs. 50,000/- each with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned Court with the following conditions:-
(i) The applicant nos.1,2,3,5 and 6 shall make themselves available for interrogation by the police officer as and when required;
(ii) The applicant nos.1,2,3,5 and 6 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 from disclosing such facts to the Court or to any police officer;
(iii) The applicants nos.1,2,3,5 and 6 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.
In default of any of the conditions, the Investigating Officer/Govt. Advocate/concerned court is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicants.
The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicant.
The applicants are directed to produce a certified copy of this order of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress who shall ensure the compliance of present order.
Order Date :- 31.3.2023
Atul kr. sri.
