Sahim vs State Of U.P. And Another
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Allahabad High Court

Sahim vs State Of U.P. And Another on 9 May, 2024

Author: Siddharth

Bench: Siddharth

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:84169
 
Court No. - 46
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2858 of 2024
 

 
Applicant :- Sahim
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rajesh Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Siddharth,J.
 

Heard learned counsel for the applicant and learned AGA for the State.

The instant anticipatory bail application has been filed on behalf of the applicant, Hasina, with a prayer to release him on bail in Case Crime No. 299 of 2022 under Section 306 I.P.C., Police Station- Khadda, District - Kushinagar.

The applicant was granted anticipatory bail by coordinate Bench of this Court vide order dated 24.05.2023 in Crl. Misc. Anticipatory Bail Application No. 4902 of 2023 quoted hereinbelow:-

"1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Sahim in Case Crime No. 299 of 2022 under Section 306 I.P.C., Police Station- Khadda, District - Kushinagar.

3. It has been argued by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. As per F.I.R., a false charge of theft of cream was alleged against the deceased by the accused-applicant and another co-accused persons, resulting into the suicide committed by the 14 years old deceased. F.I.R. was lodged and the investigation is going on. The cause of death in the post-mortem report is found as asphyxia due to ante-mortem injury and a suicide note was also recovered by the police.

4. Learned counsel for the applicant has also claimed parity with the co-accused Taribun Nishad @ Tarabun Nishad and Hasina, who have already been granted anticipatory bail by co-ordinate Benches of this Court in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.3699 of 2023, vide order dated 11.04.2023 and Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 5230 of 2023, vide order dated 17.05.2023, respectively. Since the case of the applicant is at par with the co-accused who have already been granted anticipatory bail till the submission of police report, the applicant is also entitled for the same on the ground of parity. Learned counsel has also stated that the applicant has no criminal history.

5. Learned A.G.A. opposed the prayer for anticipatory bail.

6. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held 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.

7. In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

8. 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 filing of police report under Section 173(2) Cr.P.C. before the competent Court.

9. The application is allowed accordingly.

10. In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

(i) The applicant shall make himself available for interrogation by a police officer as and when required.

(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 office.

(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.

11. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant."

Learned counsel for applicant has submitted that charge-sheet has been submitted against the applicant on 04.06.2023. However, the fact remains that even in the charge-sheet, no evidence of abetment of suicide has been found by the investigating officer. The applicant has been falsely implicated in this case.

Learned AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is 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 applicant, he is 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 applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant involved in the aforesaid crime be released on anticipatory bail till the conclusion of trial on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

1. The applicant shall not leave the country during the pendency of trial without prior permission from the concerned trial Court.

2. The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.

3. 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;

4. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.

5. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

6. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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 applicant.

Order Date :- 9.5.2024

Abhishek