Allowed

Nijam v. State of U.P. and Another

Allahabad HC8 Dec 2023ABAIL/13574/2023

Case brief

AI extract

What is this about?

The Court allowed a Second Anticipatory Bail Application under Section 438 CrPC for Nijam, who faced charges for assaulting a pharmacist. Relying on Sushila Aggarwal and Aman Preet Singh, the Court held it a fit case for bail till the end of trial, outlining specific release conditions.

What did the court decide?

Application allowed; applicant to be released on anticipatory bail upon furnishing a personal bond of Rs. 50,000 with two sureties each.

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

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Neutral Citation No. - 2023:AHC:232869

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13574 of 2023

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Applicant :- Nijam Opposite Party :- State of U.P. and Another Counsel for Applicant :- R.P. Mishra,D.S. Mani Tripathi Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Supplementary affidavit filed today is taken on record.

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This application has been moved on behalf of the applicant Nijam seeking anticipatory bail in Case Crime No. 515 of 2019, under Sections 323, 504, 332, 353, 427, 392 IPC, Police Station Khair, District Aligarh.

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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 the informant / injured has received only simple injuries in this case. There is no independent witness of the incident. It is also submitted that the applicant has absolutely no motive to commit the crime. Earlier the applicant had approached this Court vide Criminal Misc. Bail Application No. 51973 of 2019 wherein he was granted anticipatory bail till submission of police report under Section 173(2) CrPC vide order dated 27.11.2019 and the said liberty has not been misused by him. After submission of charge sheet, anticipatory bail application was moved by the applicant which was dismissed as withdrawn without passing any further order by this Court vide order dated 20.7.2023 and now this is the second anticipatory bail application. Criminal history of the applicant has been explained sufficiently. 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 the applicant has not been declared absconder. In case applicant is granted anticipatory bail, he will not misuse the

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liberty of bail and would obey all conditions of bail.

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Learned A.G.A. opposed the prayer for anticipatory bail and submitted that inside the hospital the Pharmacist has been assaulted by the applicant and other accused persons.

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

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In this matter, informant Narendra Kumar Verma, Pharmacist was beaten by the applicant and other co-accused persons inside the hospital and they also robbed his mobile phone and the informant sustained injuries. F.I.R. was lodged on 17.10.2019 and investigation started, which culminated into charge sheet. It also reveals that informant/injured has received simple injuries and no recovery of any mobile phone in connection with the present offence has been made by the police. Applicant has not been declared proclaimed offender.

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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 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

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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 :- 8.12.2023

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safi

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

Nijam v. State of U.P. and Another

Case brief

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Nijam v. State of U.P. and Another

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