Dismissed

Qayyum Ahmad v. State of U.P. and 2 Others

Allahabad HC25 Jan 2023ABAIL/735/2020

Case brief

AI extract

What is this about?

The Single Judge dismissed an application filed by Qayyum Ahmad seeking anticipatory bail under Section 438 Cr.P.C. The court noted the applicant's previous interim bail and his failure to file an affidavit or appear, deeming the delay a misuse of liberty and judicial resources. The application was dismissed as no case was made out for exercising discretion.

What did the court decide?

Application for anticipatory bail dismissed with no interim bail granted or discretion exercised.

Qayyum Ahmad Vs State of U.P. and 2 Others — Anticipatory Bail | Allahabad HC (2023)

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Court No. - 77

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 735 of 2020

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Applicant :- Qayyum Ahmad Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ghazala Bano Quadri Counsel for Opposite Party :- G.A.

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Hon'ble Mrs. Manju Rani Chauhan,J.

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List revised. No one has appeared on behalf of the applicant to press this application.

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Mr. K.P. Pathak, learned AGA for the State is present.

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The present application has been moved seeking anticipatory bail in Case Crime No. 339 of 2019, under Sections 3/5/8 of Prevention of Cow Slaughter Act, P.S.-Saini, DistrictKaushambi , with the prayer that in the event of arrest, applicant may be released on bail.

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Earlier on 17.01.2020, interim anticipatory bail was granted to the applicant. After which, the matter was listed on two occasions granting time to learned counsel for the applicant to file rejoinder affidavit.

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Perusal of the record goes to show that till date, no rejoinder affidavit has been placed on record.

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The Court finds that the applicant is enjoying the interim anticipatory bail as granted by the order dated 17.01.2020 passed by the Co-ordinate Bench of this Court. Non-appearance of the applicant in Court without "sufficient cause" cannot be excused and the same amounts to misuse of liberty as granted by the earlier order.

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The resources of the Court which includes precious judicial time are scarce and already badly stretched. Valuable Court time, which is required to be engaged in adjudication of serious judicial action, is expended on frivolous and vexatious litigation which is misconceived and is an abuse of the process of law. A judicial system has barely sufficient resources to afford justice without unreasonable delay to those having genuine grievances. Therefore, increasingly, the Courts have held that such totally unjustified use of judicial time has to be curbed and the party so wasting precious judicial resources, must be required to compensate not only the adversary but also the judicial system.

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Learned AGA for the State, on the basis of instructions, submits that from the material as collected by the Investigating Officer, credible, clinching as well as documentary evidences showing the complicity of commission of the crime has been found, therefore, the charge sheet has been submitted against in this case on 10.10.2020. 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. Learned AGA has pointed out that the applicant has approached before this Court directly without availing remedy to approach before the court below. A Full Bench of this Court in the case of Ankit Bharti and others v. State of U.P. and another, 2020 (3) ADJ 575 (FB), has clearly held that special circumstances must necessarily exist and be established, and the application must rest on a strong foundation to invoke concurrent jurisdiction of this Court directly; without rejection by the court below.

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In order to make disposal of this application, it is relevant to mention Section 438 Cr.P.C., which is reproduced herein below:-

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" 438. Direction for grant of bail to person apprehending arrest.

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(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.

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(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-

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(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

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(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;

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(iii) a condition that the person shall not leave India without the previous permission of the Court;

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(iv) such other condition as may be imposed under sub- section (3) of section 437, as if the bail were granted under that section.

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(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

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the direction of the Court under sub- section (1)."

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Grant of anticipatory bail may hamper the custodial interrogation and will lead to nondisclosure of useful information and material facts and information. In the case of P. Chidambaram vs. Directorate of Enforcement, reported in (2019) 9 SCC 24, the Apex Court held as under:-

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"74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:-

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"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."

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81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. ........."

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In another judgment of Apex Court in case of Sadhna Chaudhary Vs. State of Rajasthan & Anr., reported in 2022 (237) AIC 205 (SC) , the Apex Court has held that while dealing with an application for anticipatory bail, the High Court must consider the nature and gravity of the accusation, the exact role of the accused and apprehension of the arrest etc.

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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

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for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of applicant.

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In view of the above, this anticipatory bail application is, accordingly, dismissed .

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Order Date :- 25.1.2023 Jitendra/-

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

Qayyum Ahmad v. State of U.P. and 2 Others

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Qayyum Ahmad v. State of U.P. and 2 Others

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