Mohammad Azhar v. State of UP)

Applicant :- Azhar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Jatan Yadav,Shivajee Srivastava Counsel for Opposite Party :- G.A. Hon'ble Chandra Dhari Singh,J.

1. Instant Criminal Misc. Anticipatory Bail Application U/s 482 of BNSS, 2023 has been filed for seeking anticipatory bail in Case Crime No. 407 of 2019, under Sections 366, 376 IPC, Police Station - Baheri, District - Bareilly during pendency of the trial.

2. Learned counsel appearing on behalf of the applicant submitted that anticipatory bail has been granted to the present applicant on the earlier occasion by the co-ordinate Bench of this Court vide order dated 21.08.2019 passed in Criminal Misc. Bail Application No. 32234 of 2019 (Mohammad Azhar Vs. State of UP).

3. It is submitted that the anticipatory bail was granted to the applicant only till submission of the police report, if any, under Section 173(2) Cr.P.C. before the competent Court.

4. It is further submitted by the counsel for the applicant that police after completion of the investigation has filed charge sheet on 22.09.2019 before the competent Court, and the Court has taken cognizance on 24.12.2019.

5. It is next submitted that the applicant has no knowledge about taking cognizance of the Court and was also not aware about the summoning of charge sheet before the Court concerned and was too unknown with the fact that cognizance has been taken against him on the charge sheet.

6. It is also submitted that since the applicant had no knowledge about the cognizance, therefore, he could not appear before the court concerned.

7. On non-appearance of the applicant, the Court concerned has issued Non Bailable Warrant (NBW) against the applicant on

24.07.2024.

8. After getting the information of the NBW order passed by the concerned Court, the applicant has moved anticipatory bail application before the Court concerned. It has been rejected vide order dated 23.12.2024 by the Additional Sessions Judge, Court No. 3, District - Bareilly.

9. It is submitted that the applicant has good case on merit as there are material contradiction in the statement of the prosecutrix made under Section 161 and 164 Cr.P.C. It is also submitted that there is no any medical report on the record to support the prosecution story or connect the present applicant in the offence committed under Section 376 IPC.

10. The counsel further submitted that on the first occasion, after considering the merit of the case, co-ordinate Bench of this Court has given anticipatory bail to the applicant till submission of police report before the competent Court. Therefore, he vehemently submitted that since cognizance has been taken and the trial has commenced, the applicant has already moved anticipatory bail as there are higher anticipation of his arrest when he will appear before the concerned Court.

11. Therefore, it is prayed on behalf of the applicant that the applicant may be released on anticipatory bail in the aforesaid crime. It is further undertaken that if the applicant is released on anticipatory bail, he shall abide by all terms and conditions as imposed by the Court.

12. Per contra, learned counsel for the State has vehemently opposed the present anticipatory bail. He further submitted that this application is nothing but a gross misuse of process of law. He again submitted that the applicant is involved in a heinous crime committed against a woman. There is sufficient material on the record as well as evidence collected by the investigating agency during investigation against the applicant to link with the offence as alleged against him. It is further submitted that the applicant even after getting the anticipatory bail from this High Court on 21.8.2019, knowingly not cooperating with the trial and not appearing before the concerned court with an intention to linger on the trial proceedings.

13. In support of his submission, learned AGA relied on the order of the trial court. He has pointed out that on 24.12.2019, the charge sheet has been filed and summoning order was issued to the applicant. The matter was fixed on 5.2.2020. Again when the applicant did not appear on the several dates, the matter was listed on 21.5.2024. The bailable warrant was issued to ensure the presence of the applicant and the Court has listed the matter on 24.7.2024.

14. On 24.7.2024 also, the accused-applicant did not appear and the Court has left no option to issue NBW and the date was fixed on 10.09.2024. Again on this date also, he did not present before the concerned Court. Then fresh NBW was issued by the Court concerned for ensuring presence of the applicant and listed the matter on 23.10.2024. On 23.10.2024 also the applicant failed to appear then again NBW was issued by the Court concerned and the Court again listed the matter on 22.11.2024, even on this date, he did not appear and also on dates i.e. 05.12.2024, 12.12.2024 and 08.01.2025. On 20.01.2025, again the trial court has issued NBW and fixed the date 20.2.2025 and again on two other dates i.e. 20.02.2025 and 04.03.2025 the accused absented himself from appearing before the Court concerned.

15. Learned AGA vehemently submitted that on taking into consideration the conduct of the accused/applicant in avoiding and delaying the trial proceedings deliberately, is misuse of liberty of the anticipatory bail granted by the co-ordinate Bench of this Court on 21.8.2019. Therefore, he is not entitled for any linenency by this Court and there is great doubt and apprehension that after obtaining anticipatory bail from this Court, the accused will cooperate in the trial. It is strongly submitted by the learned AGA that looking to the conduct of the applicant as well as involvement in the heinous crime and other materials on record collected by the investigating agency during the investigation, the applicant has completely failed to make out a case for his bail at the event of the arrest.

16. Heard learned counsel for the applicant, learned counsel for the State and perused the material available on the record. On perusal of anticipatory bail order passed by the coordinate Bench of this Court on 21.08.2019, it is evident that the Court had imposed terms and conditions on the applicant i.e. (i) the applicant shall make himself available for interrogation by a police officer as and when required. But the accused/applicant disobeyed the condition. Even after submission of charge sheet before the trial court, he has failed to discharge his obligation which was mandated by the High Court. Therefore, he has committed gross violation of the terms and conditions imposed by the High Court while granting anticipatory bail to the applicant on earlier occasion.

17. I have also perused the order sheet which was vehemently relied by the learned AGA during argument, and I too find force in his argument that on several dates fixed by the trial court, the applicant did not appear before the concerned court and the concerned court again and again issued NBW orders but the applicant failed to appear which shows his deliberate intention to not to cooperate in the trial and delay the trial proceedings. After rejection of the said anticipatory bail, the instant bail application has been filed on 25.3.2025 after about three months.

18. In view of the aforesaid facts, it is crystal clear that the applicant is avoiding trial court proceedings knowingly to delay the trial as he is charged for offence punishable under Section 376 of IPC. The prosecutrix / victim is waiting for justice since 2019 more than six years due to non-cooperation of the applicant/accused person in the trial.

19. Taking into consideration the conduct of the applicant in adopting delaying tactics in the trial and non-operation during the trial proceeding of the trial court and also considering the nature of the offence of outraging the modesty of a woman, I find no merit in the instant anticipatory bail application, hence it deserves to be dismissed and accordingly it is hereby dismissed. Order Date :- 17.4.2025 S.K.S. (Chandra Dhari Singh,J.) SUNIL KUMAR SINGH High Court of Judicature at Allahabad

Applicant :- Azhar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Jatan Yadav,Shivajee Srivastava Counsel for Opposite Party :- G.A. Hon'ble Chandra Dhari Singh,J.

1. Instant Criminal Misc. Anticipatory Bail Application U/s 482 of BNSS, 2023 has been filed for seeking anticipatory bail in Case Crime No. 407 of 2019, under Sections 366, 376 IPC, Police Station - Baheri, District - Bareilly during pendency of the trial.

2. Learned counsel appearing on behalf of the applicant submitted that anticipatory bail has been granted to the present applicant on the earlier occasion by the co-ordinate Bench of this Court vide order dated 21.08.2019 passed in Criminal Misc. Bail Application No. 32234 of 2019 (Mohammad Azhar Vs. State of UP).

3. It is submitted that the anticipatory bail was granted to the applicant only till submission of the police report, if any, under Section 173(2) Cr.P.C. before the competent Court.

4. It is further submitted by the counsel for the applicant that police after completion of the investigation has filed charge sheet on 22.09.2019 before the competent Court, and the Court has taken cognizance on 24.12.2019.

5. It is next submitted that the applicant has no knowledge about taking cognizance of the Court and was also not aware about the summoning of charge sheet before the Court concerned and was too unknown with the fact that cognizance has been taken against him on the charge sheet.

6. It is also submitted that since the applicant had no knowledge about the cognizance, therefore, he could not appear before the court concerned.

7. On non-appearance of the applicant, the Court concerned has issued Non Bailable Warrant (NBW) against the applicant on

24.07.2024.

8. After getting the information of the NBW order passed by the concerned Court, the applicant has moved anticipatory bail application before the Court concerned. It has been rejected vide order dated 23.12.2024 by the Additional Sessions Judge, Court No. 3, District - Bareilly.

9. It is submitted that the applicant has good case on merit as there are material contradiction in the statement of the prosecutrix made under Section 161 and 164 Cr.P.C. It is also submitted that there is no any medical report on the record to support the prosecution story or connect the present applicant in the offence committed under Section 376 IPC.

10. The counsel further submitted that on the first occasion, after considering the merit of the case, co-ordinate Bench of this Court has given anticipatory bail to the applicant till submission of police report before the competent Court. Therefore, he vehemently submitted that since cognizance has been taken and the trial has commenced, the applicant has already moved anticipatory bail as there are higher anticipation of his arrest when he will appear before the concerned Court.

11. Therefore, it is prayed on behalf of the applicant that the applicant may be released on anticipatory bail in the aforesaid crime. It is further undertaken that if the applicant is released on anticipatory bail, he shall abide by all terms and conditions as imposed by the Court.

12. Per contra, learned counsel for the State has vehemently opposed the present anticipatory bail. He further submitted that this application is nothing but a gross misuse of process of law. He again submitted that the applicant is involved in a heinous crime committed against a woman. There is sufficient material on the record as well as evidence collected by the investigating agency during investigation against the applicant to link with the offence as alleged against him. It is further submitted that the applicant even after getting the anticipatory bail from this High Court on 21.8.2019, knowingly not cooperating with the trial and not appearing before the concerned court with an intention to linger on the trial proceedings.

13. In support of his submission, learned AGA relied on the order of the trial court. He has pointed out that on 24.12.2019, the charge sheet has been filed and summoning order was issued to the applicant. The matter was fixed on 5.2.2020. Again when the applicant did not appear on the several dates, the matter was listed on 21.5.2024. The bailable warrant was issued to ensure the presence of the applicant and the Court has listed the matter on 24.7.2024.

14. On 24.7.2024 also, the accused-applicant did not appear and the Court has left no option to issue NBW and the date was fixed on 10.09.2024. Again on this date also, he did not present before the concerned Court. Then fresh NBW was issued by the Court concerned for ensuring presence of the applicant and listed the matter on 23.10.2024. On 23.10.2024 also the applicant failed to appear then again NBW was issued by the Court concerned and the Court again listed the matter on 22.11.2024, even on this date, he did not appear and also on dates i.e. 05.12.2024, 12.12.2024 and 08.01.2025. On 20.01.2025, again the trial court has issued NBW and fixed the date 20.2.2025 and again on two other dates i.e. 20.02.2025 and 04.03.2025 the accused absented himself from appearing before the Court concerned.

15. Learned AGA vehemently submitted that on taking into consideration the conduct of the accused/applicant in avoiding and delaying the trial proceedings deliberately, is misuse of liberty of the anticipatory bail granted by the co-ordinate Bench of this Court on 21.8.2019. Therefore, he is not entitled for any linenency by this Court and there is great doubt and apprehension that after obtaining anticipatory bail from this Court, the accused will cooperate in the trial. It is strongly submitted by the learned AGA that looking to the conduct of the applicant as well as involvement in the heinous crime and other materials on record collected by the investigating agency during the investigation, the applicant has completely failed to make out a case for his bail at the event of the arrest.

16. Heard learned counsel for the applicant, learned counsel for the State and perused the material available on the record. On perusal of anticipatory bail order passed by the coordinate Bench of this Court on 21.08.2019, it is evident that the Court had imposed terms and conditions on the applicant i.e. (i) the applicant shall make himself available for interrogation by a police officer as and when required. But the accused/applicant disobeyed the condition. Even after submission of charge sheet before the trial court, he has failed to discharge his obligation which was mandated by the High Court. Therefore, he has committed gross violation of the terms and conditions imposed by the High Court while granting anticipatory bail to the applicant on earlier occasion.

17. I have also perused the order sheet which was vehemently relied by the learned AGA during argument, and I too find force in his argument that on several dates fixed by the trial court, the applicant did not appear before the concerned court and the concerned court again and again issued NBW orders but the applicant failed to appear which shows his deliberate intention to not to cooperate in the trial and delay the trial proceedings. After rejection of the said anticipatory bail, the instant bail application has been filed on 25.3.2025 after about three months.

18. In view of the aforesaid facts, it is crystal clear that the applicant is avoiding trial court proceedings knowingly to delay the trial as he is charged for offence punishable under Section 376 of IPC. The prosecutrix / victim is waiting for justice since 2019 more than six years due to non-cooperation of the applicant/accused person in the trial.

19. Taking into consideration the conduct of the applicant in adopting delaying tactics in the trial and non-operation during the trial proceeding of the trial court and also considering the nature of the offence of outraging the modesty of a woman, I find no merit in the instant anticipatory bail application, hence it deserves to be dismissed and accordingly it is hereby dismissed. Order Date :- 17.4.2025 S.K.S. (Chandra Dhari Singh,J.) SUNIL KUMAR SINGH High Court of Judicature at Allahabad