Allowed

Shahib @ Mohd. Saib v. State of U.P. and Another

Allahabad HC14 Jul 2021ABAIL/9102/2021

Case brief

AI extract

What is this about?

Court granted anticipatory bail under Section 438 Cr.P.C. to Shahib @ Mohd. Saib in connection with complaints under Section 498A IPC and Dowry Prohibition Act, imposing conditions for arrest, interrogation, and investigation.

What did the court decide?

Anticipatory bail allowed with conditions: release on bail of Rs. 50,000 with two sureties, availability for interrogation, no inducement to witnesses, surrender of passport, and return to UP within 9

Shahib @ Mohd. Saib Vs State of U.P. and Another — Matrimonial and Divorce | Allahabad HC (2021)

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Court No. - 67

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9102 of 2021

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Applicant :- Shahib @ Mohd. Saib Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pankaj Kumar Tiwari,Pankaj Kumar Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Rahul Chaturvedi,J.

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(1) Heard Sri Pankaj Kumar Tiwari, learned counsel for the applicant, learned AGA and perused the record.

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(2) The instant application is being moved by the applicant namely, Shahib @ Mohd. Saib invoking the powers of Section 438 Cr.P.C. apprehending his arrest in connection with Case Crime no. 91 of 2021, under 498A IPC and section 3/4 D.P. Act and section 4 of Muslim Women (Protection of Rights on Marriage) Act, 2019, P.S. Gulaothi, District- Bulandshahar.

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(3) From the record it is evident that the applicant has approached this Court straightaway without getting his anticipatory bail rejected from the Court of Session.

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(4) Learned counsel for the applicant has drawn attention of the Court to Clause-7 of Section 438 Cr.P.C. (U.P. Act No.4 of 2021), which read thus :

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"(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."

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After interpreting the aforesaid clause it is clear that the Legislature in its wisdom bestowed two avenues open for the accused. If the accused has chosen to come to the High Court straightaway, then he would not be relegated back to exhaust his remedy before the Court of Session first.

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(5) Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A. as per Section 438(3) Cr.P.C. (U.P. Amendment) is not required.

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(6) It has been contended by the learned counsel for the applicant that the applicant has got no criminal antecedents and he has not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced by learned counsel for the applicant on behalf of the applicant that he would render all requisite co-operation and assistance in the process of law and with the investigating agency and shall not create any hindrance to reach to its logical conclusion and shall not flee away from the course of justice.

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(7) Learned counsel for the applicant has strenuously argued that the applicant has been made target just to besmirch their reputation and

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belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicant to demonstrate the falsity of the accusation made in the FIR against the applicant by the informant. Learned counsel for the applicant has also relied upon the judgements in the cases of Arnesh Kumar vs State of Bihar and another, (2014) 8 SCC 273; Joginder Kumar vs State of U.P. and others (1994) 4 SCC 260 and Sanaul Haque vs State of U.P. and another, 2008 Cri. LJ 1998, to buttress his contentions.

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(8) In the case of Arnesh Kumar (supra) Hon'ble Apex Court has opined that the pith and core is that the police officer before arrest must put questions to himself, Why arrest?, Is it really required?, What purpose it will serve? What object it will achieve? If it is only after these questions are addressed and one or other conditions, as enumerated above, are satisfied, the power of arrest needs to be exercised. Before the arrest the police office should have a reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to satisfy further that the arrest is necessary for one or more purposes envisaged in sub-clauses (a) to (e) to Clause-1 of Section 438 Cr.P.C.

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(9) In this backdrop of legal proposition, learned counsel for the applicant has submitted that the FIR was lodged by the wife Rubeena against her husband Shahib @ Mohd. Saib with the allegation that her husband had ousted her on 27.10.2020 around 11 at night and giving triple talakh to her. It is further contended that prior to this, the applicant Shahib @ Mohd. Saib has initiated a proceeding before Principal Judge, Meerut u/s 281 of Muslim Act for the restitution of conjugal rights mention therein that her wife Rubeena had left his company on 20.08.2020, therefore, he has initiated the present proceedings before Principal Judge, Family Court on 15.09.2020. On the fact that the wife herself had left the company of her husband, there is no question of divorcing her by making the triple talakh on 27.10.2020.

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(10) Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application by mentioning that though the applicant has got no criminal antecedents but there is nothing on record to satisfy that the police personnel are after the applicant to arrest him. The alleged apprehension on behalf of applicant is imaginary and unfounded one. Learned A.G.A. has also submitted that in view of the seriousness of the allegations made in the F.I.R., the applicant is not entitled for any relaxation from this Court.

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(11) After considering the record of the case as available before the Court, in the light of rival submissions made at the Bar and keeping in view the nature and gravity of the accusation, antecedents of the applicant, his undertaking to make himself available to the authorities whenever required, the Court feels satisfied that it would be expedient to grant an order of anticipatory bail in favour of the applicant. Thus instant Anticipatory Bail stands ALLOWED.

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(12) Without expressing any opinion upon ultimate merits of the case either ways which may be adversely affect the investigation and subsequent stage of the case, the Court directs that in the event of arrest of the applicant in aforesaid case crime, he shall be released on bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the

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like amount to the satisfaction of the Arresting Officer till the report u/s 173(2) Cr.P.C. by the Investigating Officer with the conditions that :

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(i) The applicant shall make himself available for the interrogation by the police as and when required. The Investigating Officer of the case would give 48 hours prior notice or telephonically inform the concerned accusedapplicant to remain available to him for the purposes of interrogation and the accused-applicant is obliged to abide by such directions.

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(ii) The applicant shall not directly or indirectly make any inducement, threats or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.

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(iii) The Investigating Officer of the case would make all necessary endeavour to gear up the investigation in utmost transparent and professional way and would try to conclude the same within a maximum period of 90 days. During this period the accused-applicant would not leave the State of Uttar Pradesh without informing the Investigating Officer of the case and sharing his contact number.

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(iv) In the event the applicant is having passport, he will have to surrender the same before the concerned SP/SSP of the District till the submission of report u/s 173(2) Cr.P.C.

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(13) In the event, the applicant breaches or attempts to breach any of the aforesaid conditions or wilfully violates above conditions or abstains himself from the investigation, it would be open for the Investigating Officer or the concerned authority to apply before the court of Session for cancellation of bail and the Court of Session has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.

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Order Date :- 14.7.2021 Nisha

Shahib @ Mohd. Saib v. State of U.P. and Another

Case brief

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Shahib @ Mohd. Saib v. State of U.P. and Another

Case brief

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