Dismissed¶46

Azam v. State of U.P.and Another

Allahabad HC20 Jan 2023ABAIL/11700/2021

Case brief

AI extract

What is this about?

Allahabad High Court rejects S.438 CrPC anticipatory bail application of Azam (ABA No. 11700 of 2021, decided 20.01.2023) for non-appearance of applicant/counsel; FIR Case Crime No. 0052 of 2021, SS. 452/323/504/506 IPC, PS Amroha Nagar, Amroha; charge sheet dated 18.04.2021; interim bail of 18.06.2021 discharged; relies on P. Chidambaram (2019) 9 SCC 24 and Sadhna Chaudhary 2022 (237) AIC 205 (SC); refers to Sibbia, Mhetre, Sushila Aggarwal and Deoman Upadhyaya; observations limited to bail stage, not merits.

What did the court decide?

Taking into consideration the role assigned to the applicant as per prosecution case, the gravity and nature of accusation and the reasons stated, the court held that no case for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of the applicant.

Azam Vs State of U.P.and Another — Anticipatory Bail | Allahabad HC (2023)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the applicant Azam is entitled to anticipatory bail under Section 438 Cr.P.C. in Case Crime No. 0052 of 2021 (Sections 452, 323, 504, 506 I.P.C., Police Station Amroha Nagar, District Amroha), wherein a charge sheet has been filed.

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Court's answer

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Ratio / Principle

The application under section 438 Cr.P.C. is rejected and the interim order, if any, stands discharged; the court concerned may proceed in accordance with law.

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Key takeaways

The observations in the order are limited to determination of the anticipatory bail application and shall not be construed as an expression on the merits of the case; the investigating officer remains free to arrive at independent conclusions according to law.obiter¶48

Detailed headnote1 paragraphs

Anticipatory bail under S.438 Cr.P.C. — rejection. Applicant Azam sought pre-arrest bail in Case Crime No. 0052 of 2021 (Sections 452, 323, 504, 506 I.P.C., P.S. Amroha Nagar, District Amroha); interim anticipatory bail had been granted on 18.06.2021. Neither the applicant nor counsel appeared even in the revised call despite last opportunity dated 05.01.2023; the learned A.G.A. pointed out that a charge sheet was filed on 18.04.2021. Considering the role assigned to the applicant as per prosecution case, the gravity and nature of the accusation, and the principles in P. Chidambaram (2019) 9 SCC 24 and Sadhna Chaudhary (2022) 237 AIC 205 (SC) (summarising Sibbia, Mhetre and Sushila Aggarwal), the court held no case for exercising discretion under S.438 was made out and rejected the application, discharging the interim order. Observations were expressly confined to the bail application and not the merits (Manju Rani Chauhan, J.; order dated 20.1.2023).

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Court No. - 77

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11700 of 2021

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Applicant :- Azam Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Sameer Khan Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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List revised. No one has appeared on behalf of the applicant to press this application. Mr. Rakesh Soni, learned A.G.A. for the State is present.

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The instant application has been moved seeking anticipatory bail in light of the apprehension of the arrest of the applicant in Case Crime No.0052 of 2021, under Sections 452, 323, 504, 506 I.P.C., Police Station-Amroha Nagar, District-Amroha.

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On 18.06.2021, interim anticipatory bail was granted to the applicant.

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Perusal of the order sheet goes to show that vide order dated 05.01.2023 last opportunity was afforded to learned counsel for the applicant to appear before the Court and argue the matter.

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Today, no one is present on behalf of the applicant even in the revised call.

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Learned A.G.A. submits that charge sheet has been submitted in this matter on 18.04.2021. From the material as collected by the Investigating Officer, credible, clinching as well as documentary evidences showing the complicity of commission of the crime has been found, therefore, the charge sheet has been submitted. He has further submitted that in view of the seriousness of the allegations made against the applicant, he is entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

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Object of section 438 of the Code of Criminal Procedure, is that a person should not be unnecessarily harassed or humiliated in order to satisfy personal vendetta or grudge of complainant or any other person operating the things directly or from behind the curtains. It is well settled that discretionary power conferred by the legislature on this

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court can-not be put in a straitjacket formula, but such discretionary power either grant or refusal of anticipatory bail has to be exercised carefully in appropriate cases with circumspection on the basis of the available material after evaluating the facts of the particular case and considering other relevant factors (nature and gravity of accusation, role attributed to accused, conduct of accused, criminal antecedents, possibility of the applicant to flee from Justice , apprehension of tampering of the witnesses or threat to the complainant, impact of grant of anticipatory bail in investigation, trial or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.

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Grant of anticipatory bail may hamper the custodial interrogation and will lead to nondisclosure of useful information and material facts and information. In the case of P. Chidambaram vs. Directorate of Enforcement, reported in (2019) 9 SCC 24 , the Apex Court held as under:-

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"74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:-

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"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner

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and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."

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81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. ........."

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In another judgment of Apex Court in case of Sadhna Chaudhary Vs. State of Rajasthan & Anr., reported in 2022 (237) AIC 205 (SC) , the Apex Court had held as under:-

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"14. Law on the applicability or grant of anticipatory bail under section 438 Cr.P.C. may be briefly summarised as under:

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14.1. In Shri Gurbaksh Singh Sibbia and Others v. State of Punjab1, a Constitution Bench of this Court, Chief Justice Y.V. Chandrachud, speaking for the Court dealt with in detail on the considerations for grant of anticipatory bail.

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14.2. In Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others2; this Court relying upon the Constitution Bench judgment in Shri Gurbaksh Singh Sibbia laid down in paragraph 112 of the report the following factors and parameters to be considered while dealing with an application for anticipatory bail:

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"(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

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(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

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(iii) The possibility of the applicant to flee from justice;

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(iv) The possibility of the accused's likelihood to repeat similar or other offences;

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(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

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(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

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(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;

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(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

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(ix) The court to consider reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant;

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(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

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14.3. In yet another recent Constitution Bench judgment in the case of Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another3, in paragraph 85 of the report Justice Ravindra Bhatt laid down the guiding principles in dealing with applications under Section 438. Justice M.R. Shah had authored a separate opinion. Justice Arun Misra, Justice Indira Banerjee and Justice Vineet Saran agreed with both the opinions. The concluding guiding factors stated in paragraphs 92, 92.1 to 92.9 are reproduced hereunder:

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"92. This Court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438 CrPC.

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92.1. Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab4, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest,

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as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.

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92.2. It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.

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92.3. Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc.

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The courts would be justified - and ought to impose conditions spelt out in Section 437 (3), Cr.P.C. [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a casebycase basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.

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92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.

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92.5. Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the chargesheet till end of trial.

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92.6. An order of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.

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92.7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted prearrest bail.

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92.8. The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya."

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92.9. It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc."

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10 In the light of above, looking to the facts and circumstances of this case, taking into consideration the role assigned to the applicant as per prosecution case, gravity and nature of accusation as well as reasons mentioned above, this court is of the view that no case for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of applicant.

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Accordingly this application under section 438 Cr.P.C. is rejected . Interim order, if any, stands discharged.

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It is open to the Court concerned to proceed in accordance with law.

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It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case. The investigating officer of this case shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials/ evidences on record.

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Registrar (Compliance) is directed to inform about this order to the concerned Court/authority for necessary information and compliance.

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Order Date :- 20.1.2023 Rahul.

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Digitally signed by :- RAHUL GOSWAMI High Court of Judicature at Allahabad

Azam v. State of U.P.and Another

Case brief

What is this about?

What did the court decide?

Azam v. State of U.P.and Another

Case brief

What is this about?

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