Allowed

Nishu Tomar v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Allahabad HC7 Nov 2024ABAIL/2466/2024

Case brief

AI extract

What is this about?

This court granted anticipatory bail to a police Sub Inspector apprehending arrest in a criminal case. The applicant undertook to surrender within 15 days, furnish a personal bond with two sureties of Rs. 50,000, and adhere to standard and additional conditions including not tampering with evidence or witnesses.

What did the court decide?

Anticipatory bail granted contingent upon surrender within 15 days, submission of personal and surety bonds, and compliance with conditions against tampering and intimidation.

Nishu Tomar vs State of U.P. Thru. Prin. Secy. Home Lko… — Anticipatory Bail | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:73463

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Court No. - 11

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2466 of 2024

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Applicant :- Nishu Tomar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Applicant :- Salman Abbas,Syed Waqar Husain Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Shri Salman Abbas, learned counsel for the applicant, Shri Diwaker Singh, learned A.G.A. for the State and Shri Pramod Kumar Verma, Advocate, who has filed his Vakalatnama on behalf of informant/complainant, the same is taken on record.

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Supplementary affidavit has been filed today by learned counsel for the applicant, the same is taken on record.

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As per learned counsel for the applicant, the present applicant is apprehending his arrest in Case Crime No.0744 of 2022, under Sections 323, 504, 506, 406, 328, 452, 376 I.P.C. and Section 67 of Information Technology (Amendment) Act, 2008, at Police Station - Kotwali Nagar, District - Sultanpur.

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Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged in the prosecution story. Attention of the Court has been drawn towards the impugned F.I.R. which was lodged by one lady constable against the present applicant, who is serving as Sub Inspector. In the F.I.R., exact date of the incident has not been indicated, however, some dates have been indicated of 2021-2022. Learned counsel for the applicant has submitted that if allegations so leveled in the F.I.R. were correct, a prompt F.I.R. should have been lodged, inasmuch as, the complainant herself is a police constable. Learned counsel for the applicant has further submitted that after lodging of the aforesaid F.I.R., thorough investigation has been conducted, wherein the allegations could not be established, therefore, final report has been filed by the investigating agency. On such final report, protest application has been filed by the informant/complainant and while disposing of the aforesaid protest application, the Chief Judicial Magistrate, Sultanpur, vide order dated

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08.04.2024, summoned the present applicant to face trial under Sections 323, 504, 506, 406, 328, 452, 376 I.P.C. and Section 67 of Information Technology (Amendment) Act, 2008.

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Learned counsel for the applicant has next submitted that the informant had implicated the present applicant in one other false case bearing Case Crime No.0345/2023, under Section 307 I.P.C., registered at Police Station Kotwali Nagar, District Sultanpur. In the said F.I.R., the allegation was leveled against the present applicant, but it was lodged against two unknown persons also. Learned counsel for the applicant has submitted that in the said F.I.R., after thorough investigation, final report has been filed and against the final report in the aforesaid case, the protest application has also been filed by the complainant/informant, however, no order has been passed in such protest application till date.

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As per learned counsel for the applicant, the present applicant is having his bona fide case and he may convince the learned court below/trial court that he has been falsely implicated in the case, but if he appears/surrenders before the learned trial court, pursuant to the summoning order dated 08.04.2024, he may likely be taken under judicial custody and, being a Sub Inspector of Police, he may likely be placed under suspension, whereas this is a case of false implication. Learned counsel has fairly submitted that present applicant assailed the summoning order dated 08.04.2024, before the District and Sessions Judge, Sultanpur by filing a revision and that revision has been rejected on 27.06.2024. Thereafter, the applicant filed a petition under Section 482 Cr.P.C. bearing Application U/S 482 No.7808/2024, which was also rejected by this Court vide order dated 04.09.2024, therefore, the present applicant is ready to appear/surrender before the learned trial court and may file his discharge application, therefore, some protection may be given to the present applicant.

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Per contra, learned counsel for the informant and learned A.G.A. have submitted that this Court, vide order dated 04.09.2024, rejected the petition of the present applicant filed under Section 482 Cr.P.C., he should have appeared before the Court of Chief Judicial Magistrate, Sultanpur, but he avoided to appear before the court concerned.

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Learned counsel for the informant has submitted that present applicant exploited the informant, who is a lady constable, taking advantage of his position, as he is a police Sub Inspector and present applicant had been exploiting the informant for couple of years, though no prompt F.I.R. has been lodged on account of social shame. Therefore, the present application for

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anticipatory bail may be dismissed and the applicant may be directed to appear/surrender before the learned trial court concerned and apply for his regular bail.

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Having considered the arguments of learned counsel for the parties and having perused the material available on record, without entering into the merits of the issue, considering the fact that the summoning order dated 08.04.2024 has been passed by the Chief Judicial Magistrate, Sultanpur on protest application, all the remedies have been exhausted when this court rejected the petition of the applicant under Section 482 Cr.P.C. on 04.09.2024 and that order has not been assailed by the applicant, rather he is giving his undertaking that he is ready to appear/surrender before the Court of Chief Judicial Magistrate, Sultanpur and may file his appropriate application for discharge, etc. and also considering the fact that the present applicant and informant are in police department and in one other F.I.R. lodged by the same informant against the present applicant and others, final report has been filed and protest application has been filed by the informant, though no order has been passed on such protest application, I find it appropriate that liberty of the present applicant may be protected in view of the dictum of the Hon'ble Apex Court in re; Sushila Aggarwal vs. State (NCT of Delhi), 2020 SCC online SC 98 .

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Therefore, it is directed that present applicant shall appear/surrender before the Court of Chief Judicial Magistrate, Sutanpur within a period of 15 days from today or on the date fixed, whichever is earlier, and shall produce/furnish two sureties of Rs.50,000/- and a personal bond of like amount along with his undertaking that he shall co-operate in the proceedings and shall not avoid those proceedings. On completing such formalities, the Chief Judicial Magistrate, Sutanpur may accept the sureties and personal bond, strictly as per law, and may not take him into judicial custody.

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In case the present applicant does not appear/surrender before the Court of Chief Judicial Magistrate, Sultanpur, in terms of the aforesaid order, the protection so given may be deemed to be withdrawn and any appropriate coercive order may be passed by the court concerned ensuring the presence of the present applicant. Besides the aforesaid conditions, following additional conditions may also be followed by the applicant :

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(I). that 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

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evidence;

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(II). that the applicant shall not leave India without the previous permission of the court;

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(III). that in default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant;

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(IV). that the applicant shall not tamper with the evidence during the trial;

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(V). that the applicant shall not pressurize/intimidate the prosecution witnesses;

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(VI). that the applicant shall appear before the trial court on each date fixed, unless personal presence is exempted.

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In the aforesaid terms, the instant anticipatory bail application is disposed of .

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[Rajesh Singh Chauhan,J.]

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Order Date :- 7.11.2024 ML/-

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Digitally signed by :- MUNNA LAL High Court of Judicature at Allahabad, Lucknow Bench

Nishu Tomar v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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Nishu Tomar v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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