Barkat Khan and Ors. Vs State of U.P. through Principal Secretary, Department of Home, Civil Secretariat, Lucknow and Anr.

Neutral Citation No. - 2024:AHC-LKO:57101

Court No. - 14

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 60 of 2022

Applicant :- Barkat Khan And Ors. Opposite Party :- State Of U.P. Through Principal Secretary, Department Of Home, Civil Secretariat, Lucknow And Anr. Counsel for Applicant :- Anil Kumar Tiwari Counsel for Opposite Party :- G.A.

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Hon'ble Karunesh Singh Pawar,J.

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The present anticipatory bail application has been filed by the applicants Barkat Khan, Aas Mohammad and Kasid Khan apprehending their arrest in Case Crime No.36 of 1994, under Sections 143, 436, 506 I.P.C., Police Station Bewana, District Ambedkar Nagar.

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Heard learned counsel for the applicants and learned A.G.A. for the State.

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This Court while granting interim protection to the applicants vide order dated 18.1.2022 has passed the following order:-

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"The Court convened through video conferencing.

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Heard learned counsel for the applicants as well as learned A.G.A. and perused the record.

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The present anticipatory bail application has been filed on behalf of the applicant in Case Crime No.36 of 1994, under Sections 143, 436, 506 I.P.C., Police Station Bewana, District Ambedkar Nagar with the prayer to enlarge him on anticipatory bail.

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Learned counsel for the applicant has further submitted that the F.I.R. in question was lodged on the basis of concocted facts. He further submitted that the F.I.R. was challenged before this Court in Writ Petition No.3146(M/B) of 1997 and Writ Petition No.3624 of 1997 by the applicant No.1 and applicant Nos.2 &3 in which interim protection was granted by this Court on 10.09.1997 and 06.02.1998 respectively and arrest of the applicants were stayed. He further submitted that the applicants co-operated in the investigation and they never misused the liberty granted by writ court. He further submitted that charge sheet was prepared and thereafter, non-bailable warrant was issued. He further submitted that the charge sheet as well as non-bailable warrant were challenged before this Court in Crl. Misc. Case No.572(u/s 482 Cr.P.C) of 2001 in which interim protection was granted to the applicant. He also submitted that due to non presence of the counsel, the aforesaid case was dismissed on 16.11.2018. This fact was not in the knowledge of the applicants and when the police is trying to arrest the applicants, then it came into their knowledge that their petition was dismissed due to non presence of the counsel. He also submitted that during the course of investigation, applicants co-operated and they never misused the liberty granted by the writ court.

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Learned counsel for the applicants also relied on the decision of Hon'ble Supreme Court in the case of Siddarth vs. State of U.P. & Anr. reported in 2021 SCC OnLine SC 615 and submitted that in case, accused persons had not been taken into custody during the course of investigation, then there arrest is not needed. He further submitted that the applicants are ready to co-operate in the proceedings pending before the court below. He also submitted that all the accused persons shall appear before the court below on the next date fixed i.e. 17.02.2022. Therefore, kind indulgence of this Court is necessary.

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Learned A.G.A. has opposed the prayer of bail of the applicant and submitted that the protection was granted by the writ court till filing of charge sheet and the charge sheet is already filed and thereafter, non-bailable warrant was issued, and the applicants may appear before the court below and apply for regular bail under Section 439 Cr.P.C., therefore, application is liable to be dismissed, but he does not dispute this fact that during the course of investigation, applicants were not taken into custody as the protection was granted by the writ court and thereafter, charge sheet was challenged before this Court in which interim protection was granted and later on, petition was dismissed due to non presence of the counsel.

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Considering the arguments of learned counsel for the parties and going through the contents of the F.I.R., order passed by the writ court as well as other documents annexed with the present bail application, it is undisputed that during the course of investigation, arrest of the applicants were stayed by the writ court and thereafter, charge sheet was challenged before this court in which interim protection was granted, but due to non presence of the counsel, the petition was dismissed, as the learned counsel for the applicant undertakes that all the applicants will appear before the court below on the next date fixed i.e. 17.02.2022, therefore, this Court is of the view that the applicants are entitled for interim protection.

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In case, the applicants - Barkat Khan, Aas Mohammad and Kasid Khan - are taken into custody by the Investigating Officer/arresting officer then they shall be released forthwith on interim bail after taking personal bond of Rs.50,000/- and two sureties of the same amount subject to the following conditions:-

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(1) The applicants 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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(2) The applicants shall not leave the District concerned without the previous permission of the court below.

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List this case on 21.02.2022.

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Learned counsel for the applicants is directed to file an affidavit on the next date that the applicant had complied the direction and they appeared before the court below on 17.02.2022.

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The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

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The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing"

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Learned counsel for the applicant submits that charge sheet in the matter has been filed. The

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fact witnesses have been examined before the trial court. The applicant has cooperated in the investigation and in the trial. The applicant is on interim anticipatory bail and further undertakes to cooperate in the trial.

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Learned A.G.A. has vehemently opposed the bail application, however, does not dispute the fact that the applicant has cooperated in the investigation.

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In view of the undertaking given by the applicants, also reasons recorded by the Court in its order dated 18.1.2022 and the fact that the applicant has cooperated in the investigation and further undertakes to cooperate in the trial, the interim protection granted by this Court vide order dated 18.1.2022 is made absolute in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.

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In view of the above, since, charge-sheet in the matter has been filed, if the applicants are summoned to face trial for offence in question, they shall be released on bail by the trial court on their furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial court concerned with the following conditions:-

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(i) The applicants 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 tamper with the evidence;

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(ii) The applicants shall not leave India without the previous permission of the court;

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(iii)The applicants shall not pressurize/ intimidate the prosecution witness;

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(iv)The applicants shall appear before the trial court on each date fixed unless personal presence is exempted;

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(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

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Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

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It is made clear that the observations made in granting bail to the applicants shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

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In view of the aforesaid, the application is allowed.

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Order Date :- 21.8.2024 Madhu

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Digitally signed by :- MADHU KUMARI High Court of Judicature at Allahabad, Lucknow Bench

Barkat Khan and Ors. v. State of U.P. through Principal Secretary, Department of Home, Civil Secretariat, Lucknow and Anr.

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