Shoaib Vs State of U.P. and Another

Neutral Citation No. - 2023:AHC:164475

Court No. - 73

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2522 of 2023

Applicant :- Shoaib Opposite Party :- State of U.P. and Another Counsel for Applicant :- Zaid Arshad Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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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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Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Shoaib in Case Crime No.402 of 2022, under Sections 452, 354, 323, 504, 506 IPC and Section 7/8 POCSO Act, Police Station - Gagal Heri, District- Saharanpur.

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It is alleged that the present applicant alongwith two other coaccused came to the house of the victim and tried to outrage her modesty. However, in her statement recorded under Section 164 Cr.P.C., the minor victim has assigned a specific role to outrage her modesty to the co-accused Shahbaz and it has been stated by her that present applicant Shoeb and Zeeshan had only assaulted her parents, who were present over there. No further allegation has been made against the present applicant. In the medical report of the victim, simple injuries have been found.

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It is submitted by learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. Allegations levelled against the applicant are false. It is further submitted that investigation is going-on and till date no chargesheet has been submitted. Applicant's case is squarely covered under Section 438 Cr.P.C. If the applicant is enlarged on bail, he will not misuse the liberty and will cooperate with the investigation. The applicant has apprehension of his arrest by the police any time.

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Learned counsel for the applicant further submits that the present anticipatory bail application on behalf of the applicant has been filed before this Court prior to issuance of proclamation

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under section 82 Cr.P.C. The proclamation u/s 82 Cr.P.C. has been issued by the court concerned on 11.02.2023, as such, meaning thereby that when the present applicant filed application u/s 438 Cr.P.C. before the Sessions court prior to 11.02.2023, he was not declared as proclaimed offender so the bar imposed by the Hon'ble Apex Court entertaining anticipatory bail of the proclaimed offender would not attract in the present case. In support of his contention, learned counsel for the applicant has placed reliance on the decision of this Court in Manish Yadav Vs. State of U.P., 2022 0 Supreme (All) 629 . In that matter, anticipatory bail application was filed in the month of April, 2022 before the Sessions Court and was rejected on 30.4.2022 and proclamation under section 82 Cr.P.C. was issued by the court concerned on 9.5.2022 and it was held therein that after rejection of the anticipatory bail application, the aggrieved person has got a right to approach the High Court for such anticipatory bail and if in the interregnum period any proclamation under section 82 or section 83 Cr.P.C. is issued, it may be considered as a circumventive exercise being taken by the Investigating Officer. It was further held by the Division Bench of this Court that when the application for anticipatory bail was filed before the Sessions Court, there was no proclamation under section 82 Cr.P.C. and such proclamation was issued after the rejection of anticipatory bail application. Hence it was held that the bar to entertain anticipatory bail application after issuance of proclamation under section 82 Cr.P.C. would not be attracted in that case.

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Learned A.G.A. opposed the prayer. It is submitted by learned A.G.A. that the offence committed by the applicant is serious and the victim of this case is minor girl. It is next submitted that process under Section 82 Cr.P.C. had already been issued against the applicant under the instructions of the court on 11.02.2023 and since he is a proclaimed offender, he is not entitled for anticipatory bail during the course of investigation.

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So far as the factum of issuance of process under Section 82 Cr.P.C. against the present applicant is concerned, it appears from the perusal of the record that an anticipatory bail application on behalf of the applicant was moved before the Sessions court at Saharanpur and the same was rejected vide order dated 13.02.2023 and it was moved much before the date of rejection aforesaid and as such when the anticipatory bail application was moved before the sessions court, Saharanpur, no process under Section 82 Cr.P.C. was issued against him and he was not a proclaimed offender on that date. Even in the rejection order dated 13.02.2023 nowhere it

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has been mentioned that when anticipatory bail application was moved before the Sessions court, he had already been declared a proclaimed offender and process under Section 82 Cr.P.C. had already been issued against him.

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In the present case, the anticipatory bail application was rejected by the Sessions Court on 13.02.2023 and a perusal of the rejection order reveals that since then no proceedings under section 82 Cr.P.C. were started against the accused applicant. After rejection of the anticipatory bail application from the Sessions Court, on 13.02.2023 the present anticipatory bail application has been moved before this Court for anticipatory bail. It reveals from the perusal of the record that process under section 82 Cr.P.C. has been issued on 11.02.2023, which means that pending application for anticipatory bail before the Sessions court, the said proclamation was made by the court concerned. Hence, it is clear that the present applicant was not a proclaimed offender at the time of making his application for anticipatory bail before the Sessions court. So the bar imposed by the Hon'ble Supreme Court in Prem Shankar Prasad (supra) for not entertaining the anticipatory bail application of a proclaimed offender is not attracted in the present case.

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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 held 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 Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676 , the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

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Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till the submission of Police report u/s 173(2) Cr.P.C. in the matter.

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The anticipatory bail application is allowed .

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In the event of arrest of the applicant in the aforesaid case crime, 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 Station House Officer concerned with the following conditions :-

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i. The applicant shall make himself available for interrogation by a police officer as and when required.

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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 from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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iii.The applicant shall not pressurize/ intimidate the prosecution witness.

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iv.The applicants shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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v. The applicant shall not leave India without prior 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 breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law.

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Order Date :- 16.8.2023 Shivangi

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Digitally signed by :- SHIVANGI YADAV High Court of Judicature at Allahabad

Shoaib v. State of U.P. and Another

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