High Court
Case Details
Neutral Citation No. - 2024:AHC:151966 Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8964 of 2024 Applicant :- Fazil Husain Opposite Party :- State of U.P. and Another Counsel for Applicant :- Krishna Dutt Tiwari Counsel for Opposite Party :- G.A. Hon'ble Vikram D. Chauhan,J.
Legal Reasoning
1. Heard learned counsel for the applicant as well as learned AGA and perused the material available on record. 2. The present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Fazil Husain in Case Crime No. 357 of 2019, under section 420 I.P.C., Police Station Bilari, District Moradabad 3. It is submitted by learned counsel for the applicant that charge sheet has been submitted against the applicant under Sections 420 I.P.C. which is punishable upto 7 years. The criminal history of the applicant has been explained in para 24 of the affidavit. He submits that in view of the judgment of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another, (2021) 10 SCC 773, the applicant is entitled to be enlarged on anticipatory bail. 4. In the present case, although the material has been relied upon by learned A.G.A. with regard to complicity of the applicant in the alleged crime. However, the section in which the applicant is being proceeded with is punishable with imprisonment for a term extending upto seven years. Article 21 of the Constitution of India provides that the liberty of an individual shall not be deprived of except in accordance with the procedure established by law. 5. As per Section 60A Code of Criminal Procedure, 1973, no arrest shall be made except in accordance with the provisions of the Code of Criminal Procedure or any other law for the time being enforced. The aforesaid provision is an extension of Article 21 of the Constitution of India. 6. As per Section 41 of Cr.P.C. it is provided that where an individual is proceeded with for an offence which is punishable upto the extent of seven years, it is necessary that the police officer concerned is satisfied that the arrest is necessary:- (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making 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 the police officer, or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing. 7. While making such arrest the police office shall record the same in writing. 8. In the present case, learned A.G.A. has not pointed out that the arrest of the applicant is required to prevent the applicant from committing any further offence or for proper investigation of the offence or to prevent the applicant from causing the evidence of the offence to disappear or tamper such evidence. 9. Learned A.G.A. has also not raised any concern with regard to any inducement, threat or promise to any person acquainted with the facts of the case so as to disuade him from disclosing such facts to the Court or the police officer. It is also not the case of learned A.G.A. that the arrest of the applicant is required to ensure his presence before the Court whenever required. 10. Once the conditions of Section 41(1)(b)(ii) of Cr.P.C. has not been raised by the learned A.G.A. nor any material or circumstances has been shown to the conditions specified therein, then the liberty of the individual stands protected by Article 21 of the Constitution of India read with Section 60A of Cr.P.C. 11. Learned AGA for the State has pointed out the criminal antecedents of the applicant. No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases. 12. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:- "We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked." 13. In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail. 14. In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent. 15. It is settled principle of law that the object of bail is to secure the attendance of the accused. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State.
Decision
16. In view of the above, the applicant is granted anticipatory bail in respect of offence described in para 1 of the present order. In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions:- (i) The applicant shall make himself available for interrogation by a police office 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 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 concerned. (iv) In the event, the applicant changes residential address, the applicant shall inform the court concerned/Investigating Officer about new residential address in writing. (v) The applicant shall cooperate with the investigation and make himself/herself available for interrogation whenever required. (vi) The applicant shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police. (vii) The applicant shall maintain law and order. (viii) The applicant shall at the time of execution of the bond, furnish his address and mobile number to investigating officer, and the court concerned. (ix) The applicant shall regularly remain present during the trial, and cooperate with the Court to complete the trial for the above offences. (x) Non presence of the applicant or his counsel before the court concerned shall be construed as violation of the present order and the court concerned would be at liberty to take coercive measures in accordance with law. 17. In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant. 18. With the directions made above, the anticipatory bail application stands allowed. Order Date :- 18.9.2024 K.K. Maurya