Court rejected the anticipatory bail application of Anish Khan in a case involving a fatal armed assault and alleged property dispute. The judge held that no case for exercising discretion under Section 438 Cr.P.C. was made out.
Application under Section 438 Cr.P.C. rejected; interim order, if any, stands discharged.
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Court No. - 77
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5890 of 2022
Applicant :- Anish Khan Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Prem Babu Verma,Anita Singh,Kumari Poonam Rajpoot,Nirmla Kumari Counsel for Opposite Party :- G.A.,Ashish Goyal
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Prem Babu Verma, learned counsel for the applicant, Mr. Ashish Goyal, learned counsel for the informant and Mr. K.P. Pathak, learned A.G.A. for the State.
The present application has been moved seeking anticipatory bail in Case Crime No.183 of 2022, under Sections 452, 386, 307, 323, 504, 506 I.P.C., Police Station-Rasoolpur, DistrictFirozabad, with the prayer that in the event of arrest, applicant may be released on bail.
As per prosecution, the FIR has been lodged against two named accused Muddasir and Ahmad @ Chotu and two unknown persons with the allegations that the informant's brother had sold his share of property and had received some money from the same. The named accused Muddasir and Ahmad used to visit their house in order to grab the money from informant's brother and used to demand money from him and also threatened him for life, in case of refusal from his side to give money to them. On 10.05.2022, when informant's brother Sabir was sitting along with informant and his wife at about 02:30 P.M., the named accused Muddasir and Ahmad along with two unknown persons entered the house, having countrymade pistol and after using abusive language dragging the informant's brother out of the house, fired upon him in which he sustained serious injury. After hearing the noise, people gathered there and the accused persons ran away.
Learned counsel for the applicant submits that the applicant is innocent and he has an apprehension that he may be arrested in the above-mentioned case, whereas there is no credible evidence against him. He further submits that applicant is not named in the FIR, his name surfaced in the statement of injured Sabir wherein the presence of the applicant is shown at the time of incident. He further submits that no role of causing injury has been assigned to the applicant. He further submits that applicant has no criminal history. The applicant undertakes to co-operate
during investigation and trial and he would appear as and when required by the investigating agency or Court. It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate during investigation and would obey all conditions of bail.
Learned A.G.A. on the other hand points out that charge sheet has been submitted against named accused persons Muddasir and Ahmad, which goes to prove the incident. As per medical report, the injured has sustained six fire arm injuries, which also proves the involvement of the applicant in the incident. He has further submitted that in view of the seriousness of the allegations made against the applicant, he is not 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.
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 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.
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 . Interim order, granted earlier, if any, stands discharged.
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.
Order Date :- 4.1.2023 Rahul.
Digitally signed by :- RAHUL GOSWAMI High Court of Judicature at Allahabad
3 issues framed by the court
Whether anticipatory bail should be granted to the applicant who is not named in the FIR but whose presence was mentioned in the injured's statement.
Whether the gravity of the allegations and the nature of the assault preclude the grant of anticipatory bail.
Whether the applicant's lack of criminal history and promise to cooperate is sufficient to justify anticipatory bail.
1 provisions across 1 enactments
Anish Khan
State Of U.P.
Manju Rani Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
