Disposed

Mohd. Salman v. the State of U.P. Thru. Prin. Secy. Home, Civil Sectt. Lko. U.P.

Allahabad HC29 Jan 2024ABAIL/127/2024

Case brief

AI extract

What is this about?

In an anticipatory bail application under Section 438 Cr.P.C., the Court held that a proposed amendment to Section 438 Cr.P.C. remained inoperative without Presidential assent. Consequently, the matter was listed for hearing. Liberty was granted until the next date subject to a bond of Rs. 50,000 and specific conditions.

What did the court decide?

Liberty to the applicant until the next date of listing. In the event of arrest by any process, release on personal bond of Rs. 50,000 and two sureties of like amount, subject to standard conditions.

Mohd. Salman vs the State of U.P. Thru. Prin. Secy… — Anticipatory Bail | Allahabad HC (2024)

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Court No. - 15

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 127 of 2024 Applicant :- Mohd. Salman Opposite Party :- The State Of U.P. Thru. Prin. Secy. Home, Civil Sectt. Lko. U.P. Counsel for Applicant :- Vinod Kumar Singh Counsel for Opposite Party :- G.A.,Navneet Kumar Srivastava,Upendra Prakash Pathak

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Hon'ble Mohd. Faiz Alam Khan,J.

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Compliance affidavit filed today on behalf of the State is taken on record.

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Shri Jyotindra Mishra, learned Senior Advocate assisted by Shri Vinod Kumar Singh, learned counsel for the applicant, Shri Navneet Kumar Srivastava, learned counsel appearing for the complainant/informant as well as learned A.G.A. for the State and perused the record.

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The instant application has been moved by the applicant- Mohd. Salman, in F.I.R./Case Crime No. 0294 of 2017, under Sections 147, 323, 504, 452 and 376-D I.P.C., Police Station Safdarganj, District Barabanki, with the prayer to enlarge him on anticipatory bail, as he is apprehending arrest in the abovementioned case.

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On the last date when this case was taken up a preliminary objection raised on behalf of the State that the instant anticipatory bail application may not be maintainable in view of the amendment made in the State of U.P. under Section 438 Cr.P.C.

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Today, a compliance affidavit has been filed by the State in compliance of the earlier order of this Court, wherein it is specifically stated that though, an amendment has been proposed by the State under Section 438 Cr.P.C., however, the same has not received accent of the Hon'ble President of India, yet. Thus, this proposed amendment may not be applicable within the territory of State of Uttar Pradesh without the consent/assent of Hon'ble President of India. Therefore, this Court is proceeding to hear the matter on merits.

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Shri Jyotindra Mishra, learned Senior Counsel appearing for the applicant while drawing the attention of this Court towards the summoning order passed by the trial court of date 22.03.2022 whereby the applicant has been summoned to face trial amongst others under Section 376-D I.P.C. also and the impugned order dated 16.12.2023 whereby the request of the

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applicant for grant of anticipatory bail has been rejected, submits that the allegations which have been made by the prosecutrix/victim in the F.I.R., which has been lodged by moving an application under Section 156(3) Cr.P.C. as well as in her statement recorded under Section 161 and 164 Cr.P.C. are patently false, concocted and could not be believed.

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It is further submitted that initially after thorough investigation the 'final report/closure report' was submitted, however, the same was not accepted and further investigation was directed. However, even after further investigation 'closure report/final report' was submitted again and the trial court without there being any basis on a protest petition filed by the informant/victim has taken cognizance under Section 190(1)(b) of the Cr.P.C. and summoned the applicant amongst other penal sections under Section 376-D I.P.C. also.

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It is vehemently submitted that when the trial court was taking cognizance under Section 190(1)(b) Cr.P.C., the material, which has been collected by the investigating officer during the course of investigation and the observations made by him may not be brushed aside lightly and the same has to be taken in right perspective while the order, whereby the applicant has been summoned to face trial and cognizance has been taken under Section 190(1)(b) Cr.P.C. is devoid of such exercise.

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It is also submitted that since the investigation has been conducted twice and in both the investigation the applicant has been found innocent and no culpability was attached with any conduct of the applicant, it is apparent that the story has cooked up by the prosecutrix is highly doubtful and could not be believed.

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It is further submitted that the applicant and other coaccused persons had earlier approached this Court by filing a Writ Petition No. 7765 of 2022 and the same was admitted for being considered on merits and an observation was also made by this Court therein that till the next date of listing the trial court shall pay due regard to the fact that the instant writ petition is pending before this Court for consideration.

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It is next submitted that applicant is ready to cooperate in the trial and since he has not been arrested during the course of investigation, there is no logic in sending him to prison only for the purpose of getting the regular bail decided, moreso when he is not having any criminal history.

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Learned A.G.A. as well as Shri Navneet Kumar Srivastava, learned counsel appearing for the complainant/informant on the

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other hand submits that having regard to the allegations levelled by the informant/victim in the F.I.R. as well as in the statements recorded under Section 161 and 164 Cr.P.C., the applicant is not entitled for any protection.

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Having heard learned counsel for the parties and having perused the record, it is evident that the allegations of the F.I.R., which has been lodged by moving an application under Section 156(3) Cr.P.C. has been investigated twice and on both the occasions the investigating officer has submitted the 'final report/closure report'. It was only on account of a protest petition moved by the informant/victim, the trial court has taken cognizance under Section 190(1)(b) Cr.P.C. and summoned the applicant to face trial amongst other under Section 376-D I.P.C. Various submissions have been raised by learned Senior Counsel in order to canvass that the parties are highly inimical towards each other. They are having established dispute and the instant allegations against the applicant is nothing but has been alleged on account of revenge.

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Having regard to all the facts and circumstances of the case, in the considered opinion of this Court, liberty of the applicant may be protected till the next date of listing.

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Thus, list this case on 16.02.2024, by which date the State as well as learned counsel for the complainant/informant may file counter affidavit/objections with regard to the prayer of anticipatory bail of the applicant.

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It is provided that till the next date of listing, in the event of arrest of the accused-applicant, namely, Mohd. Salman, under any process of the trial court or by any police officer, he shall be released forthwith on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- and two sureties each in the like amount to the satisfaction of the Station House Officer of the Police Station concerned/Investigating Officer/Trial Court subject to the following conditions:-

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(i) The applicant shall make himself available for interrogation or even for discovery of any fact 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 them from disclosing such facts to the Court or to any police officer.

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(iii) The applicant shall not leave the country concerned without the previous permission of the Court.

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Order Date :- 1.2.2024/Praveen

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Digitally signed by :- PRAVEEN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Mohd. Salman v. the State of U.P. Thru. Prin. Secy. Home, Civil Sectt. Lko. U.P.

Case brief

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Mohd. Salman v. the State of U.P. Thru. Prin. Secy. Home, Civil Sectt. Lko. U.P.

Case brief

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What did the court decide?

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