Allowed

Alahamat Khan v. State of U.P. State of U.P. and Another

Allahabad HC22 Nov 2023ABAIL/11910/2023

Case brief

AI extract

What is this about?

The High Court allowed an application for anticipatory bail under Section 438 CrPC for the applicant, Alahamat Khan, facing multiple IPC charges including robbery. Relying on Supreme Court precedents, the court held that bail could extend till the trial's conclusion as no incriminating articles were recovered and custody during investigation was not essential.

What did the court decide?

Application allowed; anticipatory bail granted till the end of trial on personal bond of Rs. 50,000 with two sureties of like amount.

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

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Neutral Citation No. - 2023:AHC:221610

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11910 of 2023

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Applicant :- Alahamat Khan Opposite Party :- State Of U.P. State Of U.P. And Another Counsel for Applicant :- Anup Dhar Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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This application has been moved on behalf of the applicant Alahamat Khan seeking anticipatory bail in Case Crime No. 59 of 2000 (Criminal Case No. 2351 of 2005), under Sections 342, 395, 218, 323, 166, 193 IPC, Police Station G.R.P. Anandnagar, District Maharajganj.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

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It is submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. It is further submitted that on the basis of suspicion of keeping some explosive substance the informant was arrested by the police team. It is further submitted that prima facie the police party found it to be an explosive substance but however after analysis it was found not to be an explosive substance but in discharge of his official duty the aforesaid act was done by the present applicant. Applicant is a police personnel and he is still in service. No malafide act was done by the present applicant. It is also submitted that no recovery of money or any incriminating article has been made by the police during investigation. After completion of investigation, charge sheet has been submitted in the matter. Applicant had been cooperative during investigation. No process under Sections 82 and 83 CrPC has been issued against the applicant and he has not been declared absconder. In case applicant is granted anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

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Learned A.G.A. opposed the prayer for anticipatory bail but however could not dispute this factual aspect that no incriminating

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article has been recovered by the police during investigation.

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I have considered the rival submissions made by the learned counsel for the parties.

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One Awadhraj Prasad was falsely alleged to having explosive substance with him in a train. The police party arrested him and sent to jail but subsequently it was found that the recovered material was not an explosive substance. F.I.R. was lodged by the aggrieved person Awadhraj Prasad alleging therein that a robbery of Rs. 89,000/- alongwith some other articles was committed against him by the police team and the present applicant was also alleged to be a member of the aforesaid police team. After investigation charge sheet was submitted in the year 2004. It also reveals from the perusal of the record that applicant is not a proclaimed offender. No custodial interrogation is required.

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Though charge sheet has been submitted in the matter yet in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

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It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

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It has been further held by the Hon'ble Apex Court that 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. It has further been held that 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.

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In Aman Preet Singh v. CBI , (2022) 13 SCC 764, the Hon'ble Apex Court has held that :

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"11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section

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170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87CrPC that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

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Insofar as the present case is concerned and the general principles under Section 170CrPC, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

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Considering the settled principles of law regarding anticipatory bail, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on

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the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till the end of trial.

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The application is allowed accordingly.

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In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions:-

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(i) The applicant shall make himself available before the Court concerned on the date fixed in the matter and will cooperate in the trial.

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(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/her from disclosing such facts to the Court or to any police office.

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(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

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In case of default of any of the conditions, the same may be a ground for cancellation of protection granted to the applicant.

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Order Date :- 22.11.2023

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safi

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Digitally signed by :- MAHBOOB SAFI High Court of Judicature at Allahabad

Alahamat Khan v. State of U.P. State of U.P. and Another

Case brief

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Alahamat Khan v. State of U.P. State of U.P. and Another

Case brief

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