The High Court rejected an anticipatory bail application under Section 438 Cr.P.C. in a cow slaughter case. The court noted the applicant failed to demonstrate apprehension of arrest in the affidavit and found the allegations serious.
Application under Section 438 Cr.P.C. rejected; no bail direction granted.
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Court No. - 77
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1479 of 2023
Applicant :- Naseer Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kailash Nath Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Kailash Nath, learned counsel for the applicant and Mr. K.P. Pathak, learned A.G.A and perused the record.
The instant application is being moved by the applicant- Naseer that he has every reason to believe that he may be arrested in connection with Case Crime no.257 of 2022, under Sections 3/5/8 Prevention of Cow Slaughter Act, Police Station-Khetasarai, District-Jaunpur.
Learned counsel for the applicant submits that the FIR has been lodged by the informant against the applicant and co-accusedGurfan Ahmad stating therein that on the information received by the police personnel, they went to the spot from where 46 kg. beef was found in the house of co-accused Gurfan Ahmad, who was arrested from the spot whereas the applicant ran away as has been admitted by the co-accused Gurfan Ahmad.
He next submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive and he has an apprehension that he may be arrested in the above mentioned case, whereas there is no credible evidence against him. Learned counsel for the applicant has strenuously advanced a number of arguments demonstrating falsity of accusation levelled by the informant in first information report to besmirch reputation of the applicant and belittle him in the public estimate. He contended that the applicant has no criminal antecedent to his credit and never undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced 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.
Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application by mentioning that allegations against the applicant are serious in nature. On the basis of instructions, he further submits that the applicant is not cooperating in the investigation. He further submits 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.
In order to make disposal of this application, it is relevant to mention Section 438 Cr.P.C., which is reproduced herein below:-
" 438. Direction for grant of bail to person apprehending arrest.
(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.
(2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person 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 from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1)."
From perusal of the records, it transpires that offence is serious in nature. There is nothing on record to show apprehension of arrest of the applicant nor has any such averment been made in the affidavit regarding the same.
In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties, 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.
Accordingly this application under section 438 Cr.P.C. is rejected . Order Date :- 9.2.2023 Jitendra/-
Digitally signed by :- JITENDRA KUMAR YADAV High Court of Judicature at Allahabad
3 issues framed by the court
Whether anticipatory bail should be granted under Section 438 Cr.P.C. in cases of alleged cow slaughter under the Prevention of Cow Slaughter Act.
Whether the applicant has a reasonable apprehension of arrest given that no such averment was made in the affidavit.
Whether the seriousness of the allegations bars the grant of anticipatory bail.
1 provisions across 1 enactments
Naseer
Manju Rani Chauhan
As recorded by the court registry
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