Uttarakhand High Court
Naeem vs State Of Uttarakhand on 8 April, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
2025:UHC:2644
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Anticipatory Bail Application No. 351 of 2025
Naeem. .......Applicant.
Versus
State of Uttarakhand. .......Respondents.
Present:
Mr. Lalit Sharma and Ms. Anmol Sandhu, learned counsel for the applicant.
Mr. Siddharath Bisht, learned Assistant Government Advocate for the State.
Hon'ble Mr. Justice Rakesh Thapliyal, J.
1. Present applicant is praying for anticipatory bail in
relation to FIR No. 620 of 2024 registered on 20.12.2024 , Police
Station - Rudrapur, District - Udham Singh Nagar wherein
present applicant has been implicated for the offence
punishable under Section 318 (4), 61 (2) BNS, 2023.
2. Learned counsel for the applicant submits that the
applicant always cooperated with the investigation and during
investigation, the Investigation Officer had given a notice under
Section 35 (3) of the BNSS, 2023, which was complied with by
the applicant and now, after investigation charge-sheet has
been filed and as such, now the applicant has an apprehension
of his arrest, therefore, applicant may be granted anticipatory
bail.
3. On the other side, learned State Counsel submits and
argued that since the charge sheet has already been filed and
cognizance has already been taken, therefore, now, future
course of action will be taken by the trial court, strictly as per
law. He further submits that after filing of the charge-sheet,
applicant is not remediless, he can challenge the charge-sheet
by moving an application under Section 528 of the BNSS, 2023
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but does not deserved for anticipatory bail taking into
consideration that charges are serious in nature relating to
cyber fraud.
4. In response to this Mr. Lalit Sharma, learned counsel for
the applicant, has also placed reliance on the judgment
rendered by the Full Bench of this Court whereby this Court
has held that even after filing of the charge sheet, anticipatory
bail application is maintainable. I am in full agreement with the
Full Bench decision. He has also placed reliance on the
judgment passed by the Coordinate Bench of this Court in the
case of ABA No. 1111 of 2023 dated 05.01.2024 whereby the
Coordinate Bench of this Court granted anticipatory bail to the
applicant, after filing of the charge-sheet.
5. Mr. Lalit Sharma, learned counsel for the applicant has
also placed reliance on another judgment of Hon'ble Supreme
Court in the case of Mahdoom Bava Vs. CBI (2023) AIR (SC)
1570 particularly by referring paragraphs 9 to 12 of the
judgment, which reads as under:
"9. On the strength of the aforesaid allegations, which are
certainly serious in nature, the prayer of the appellants for
anticipatory bail is opposed vehemently by the learned
Additional Solicitor General. But in our considered view
there are at least three factors which tilt the balance in
favour of the appellants herein. They are:--
(i) Admittedly, the CBI did not require the custodial
interrogation of the appellants during the period of
investigation from 29.06.2019 (date of filing of FIR) till
31.12.2021 (date of filing of the final report). Therefore, it is
difficult to accept the contention that at this stage the
custody of the appellants may be required;
(ii) In the reply/counter filed before the High Court, the
CBI had taken a categorical stand that the Court had merely
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issued summons and not warrant for the appearance of the
accused. In the case of Shri Deepak Gupta, CBI had taken a
stand before the Special Court that "the presence of the
accused is not required for the investigation but it is
certainly required for trial" and that therefore he needs to be
present. Therefore, all that the CBI wanted was the presence
of the accused before the Trial Court to face trial. In such
circumstances, to oppose the anticipatory bail request at
this stage may not be proper; and
(iii) All transactions out of which the complaint had arisen,
seem to have taken place during the period 2009-2010 to
2012-2013 and all are borne out by records. When the
primary focus is on documentary evidence, we fail to
understand as to why the appellants should now be
arrested.
10. More importantly, the appellants apprehend arrest, not
at the behest of the CBI but at the behest of the Trial Court.
This is for the reason that in some parts of the country,
there seems to be a practice followed by Courts to remand
the accused to custody, the moment they appear in response
to the summoning order. The correctness of such a practice
has to be tested in an appropriate case. Suffice for the
present to note that it is not the CBI which is seeking their
custody, but the appellants apprehend that they may be
remanded to custody by the Trial Court and this is why
they seek protection. We must keep this in mind while
deciding the fate of these appeals.
11. In the case of the prime accused, namely Shri Mahdoom
Bava, an additional argument advanced by the learned
Additional Solicitor General is that he was involved in
eleven other cases. But the tabulation of those eleven cases
would show that seven out of those eleven cases are
complaints under Section 138 of the Negotiable
Instruments Act, 1881 and three out of those seven cases
are actually inter-parties and not at the instance of the
Bank. The eighth case is a complaint filed by the Income
Tax Officer and it relates to the non-payment of TDS
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amount. The remaining three cases are the cases filed by
CBI, one of which is the subject matter out of which the
above appeals arise.
12. In view of the aforesaid, we are of the considered view
that the appellants are entitled to be released on bail, in the
event of the Court choosing to remand them to custody,
when they appear in response to the summoning order.
Therefore, the appeals are allowed and the appellants are
directed to be released on bail, in the event of their arrest,
subject to such terms and conditions as may be imposed by
the Special Court, including the condition for the surrender
of the passport, if any."
6. I have gone through the aforesaid judgment, I am in full
agreement with observations of Hon'ble Supreme Court that
since the investigation has already been completed, there is no
need of custodial interrogation of the applicant. In paragraph
10 of the said judgment, the Hon'ble Supreme Court has
observed that in some parts of the country, there seems to be a
practice followed by Courts to remand the accused to custody,
the moment they appear in response to the summoning order.
The correctness of such a practice has to be tested in an
appropriate case.
7. After gone through with the aforesaid judgment, this
Court is of the view that for the purposes of remand, facts of
every case has to be examined. Here in the present case, after
thorough investigation and collecting credible evidence, charge
sheet has been filed and the trial court has taken cognizance,
therefore, the trial court will take future course of action,
strictly as per law.
8. The argument, as advanced by the learned counsel for the
applicant that there is an apprehension of arrest is totally
misconceived, since the charge sheet has already been filed and
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the matter is now before court where further course of action
will be taken by the trial court as per law and till date, no such
process has been issued against the present applicant, therefore,
the apprehension of the present applicant is unfounded and
without any substance.
9. Admittedly, present applicant is not remediless,
therefore, this Court is of the view that present applicant is not
entitled for anticipatory bail. Accordingly, the present
anticipatory bail application is rejected.
(Rakesh Thapliyal, J)
08.04.2025
SKS
