Allahabad High Court
Firoz vs State Of U.P. & 4 Others on 13 May, 2024
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:86106
Court No. - 74
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4532 of 2024
Applicant :- Firoz
Opposite Party :- State Of U.P. & 4 Others
Counsel for Applicant :- Rakesh Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
1. Heard learned counsel for the applicant and learned Additional Government Advocate for the State.
2. At the outset, learned AGA for the State raised preliminary objection that sub-section (4) of Section 438 of Cr.P.C, explicitly excludes the application of the provision relating to pre-arrest bail in relation to any case involving the arrest of any person on accusation of having committed an offence under subsection (3) of Section 376 IPC as such the application for pre-arrest bail is not maintainable.
3. This court has considered the objection regarding maintainability of the pre-arrest bail and held the anticipatory bail to be maintainable on accusation of having committed an offence under subsection (3) of Section 376 IPC in Criminal Misc Anticipatory Bail Application U/s 438 Cr.P.C. No. 1135 of 2024 (Krishna Vs State of UP and others) decided on 13.05.2024.
4. This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No. 200 of 2023, under sections 363, 366, 68, 376(3), 506, 120-B IPC and Section 3/4(2) and 16/17 of POCSO Act, P.S. Kharkhauda, District Meerut, during the pendency of application.
5. In brief, according to the prosecution case, informant filed a complaint to the effect that on the morning of 09.05.2023, his minor girl aged 15 years, was not at home and when the informant looked in the nearby cameras, she was seen leaving home at 12:03 in the night and on search she could not be found. It is further alleged that then villagers, namely, Aslam and Wasim of the village told that her daughter was seen going with the villagers, namely, Shahvez, Gulfam and Smt Ameerjahan. These people have lured his daughter away. It is further alleged that when the informant searched the things in the house, he found that his daughter took away with himself Rs 67,000/- and five tola gold jewelery belonging to his wife.
6. It is contended by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the said case. Applicant is not named in the FIR. His name came into light only in the statement of the victim. There is no independent evidence against him. The First Information Report has been filed by the informant with a delay of one day and no reason for the delay has been explained and the applicant/accused is not named in the FIR. It is further contended that as per statements of the victim under Sections 161 & 164 Cr.P.C. specific allegation is against co accused Shahvez and further the victim has solemnized marriage with co accused Shahvez on 10.05.2023, as per the marriage certificate annexed as Annexure No. 9 to the bail application. It is further submitted that there are many contradictions in the statements of the victim. It is further submitted that co accused Ameerjahan and Shadab have already been granted bail. It is further submitted that as per medical examination report there is no injury found on the person of the victim. Applicant has no criminal history. The applicant is having definite apprehension that he may be arrested by the police any time.
7. Learned AGA has opposed the prayer for bail, but could not dispute the said facts.
8. 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.
9. In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant Firoz involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
(1) The applicant shall co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation;
(2) 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; and
(3) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
(4) The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.
(5) 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.
(6) 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.
(7) 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 his in accordance with law.
10. In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
11. With the aforesaid observations/ directions, the application stands disposed of.
Order Date :- 13.5.2024
RavindraKSingh
