Allowed

Fatima v. the State of U.P. Thru. Its Secy. Home, Lko. and Another

Allahabad HC27 Aug 2024CRLA/1866/2024

Case brief

AI extract

What is this about?

Appeal against rejection of anticipatory bail in a case under Sections 368, 341 IPC and Section 3(2)(v) SC/ST Act where the appellant allegedly sheltered the main accused and victim. Interim protection had been granted during investigation; charge sheet was later filed. The High Court allowed the appeal and granted anticipatory bail with conditions.

What did the court decide?

Order dated 11.10.2023 set aside; anticipatory bail granted on furnishing personal bond with two sureties, subject to conditions including surrender before trial court on or before 15.09.2024.

Fatima Vs the State of U.P. Thru. Its Secy. Home, Lko… — Caste Atrocities | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:58108

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Court No. - 15

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Case :- CRIMINAL APPEAL No. - 1866 of 2024

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Appellant :- Fatima Respondent :- The State Of U.P. Thru. Its Secy. Home, Lko. And Another Counsel for Appellant :- Neeta Tripathi Counsel for Respondent :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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The case was earlier taken up in the morning when learned counsel for the appellant and learned AGA for the State were available and no one was present for respondent no.2, while name of Shri D.P. Dutt Tiwari was printed in the cause list as learned counsel for respondent no.2/ informant and in this scenario as well as in order to know the material available against the appellant the case was directed to be taken at 2.15 P.M. today, so that learned AGA may get sufficient time to go through the material collected by the Investigating Officer during the course of investigation. When this case was again taken up at 2.15 P.M. learned counsel for the appellant as well as learned AGA for the State was available, while Shri D.P. Dutt Tiwari learned counsel appearing for opposite party no.2 / informant again chooses to remain absent and no request has either been made to adjourn the case on his behalf.

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Heard Shri Naseem Ahmad as well as Ms. Noorus Saba, learned counsel for the applicant/appellant as well as learned A.G.A. for the State and perused the record.

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This appeal has been preferred under Section 14 (A) (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against impugned order dated 11.10.2023, passed by Special Judge, POCSO Act,/ Additional Sessions Judge, Lucknow in Second Anticipatory Bail Application No. 7461 of 2023 "Khushboo Bano vs. State of U.P.", arising out of Case Crime No. 464/2021, under Sections 368, 341 IPC and Section 3(2)(v) SC/ST (Prevention of Atrocities) Act, Police Station Thakurganj, District Lucknow, whereby the bail application of the appellant/applicant has been rejected.

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Learned counsel for appellant submits that it is a case of false implication. During the course of investigation the appellant has approached this Court by filing Application under Section 438 Cr.P.C. bearing No. 863 of 2022 and vide order dated 7.6.2023

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interim protection from arrest was granted to her subject to certain conditions, however, the appellant had cooperated with the investigation and during the pendency of the said anticipatory bail application the investigation of the case has completed and though there was no clinching evidence / material available against the appellant/applicant the Investigating Officer of the case has submitted a charge sheet. However, after submission of charge sheet by subsequent order dated 28.11.2022 the Anticipatory Bail Application of the applicant has been rejected.

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It is further submitted that since the appellant had cooperated throughout the investigation and there was no occasion or opportunity available for the Investigating Officer to have apprehended him and the charge sheet has now been filed it would be a futile exercise to compel the applicant/appellant to surrender and be incarcerated in prison only for the purpose of procuring regular bail. In this regard learned counsel for the appellant has relied on the law laid down by the Hon'ble Supreme Court in Sushila Aggarwal vs. State (NCT of Delhi) , 2020 SCC Online SC 98, Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 Siddharth v. State of UP : 2021 SCC OnLine SC 615, in order to highlight that the investigation of the case has already been completed only for the purpose of filing of charge sheet there is no necessity for the accused person to be in prison.

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It is vehemently submitted that so far as the merits of the case are concerned the only allegations which have been levelled against the appellant are in terms that for a short period of time the victim has resided in the house of the appellant and beyond that there is no iota of material or evidence available against the appellant and considering all these aspects in detail the Coordinate Bench has found merits in the case of the appellant and has granted interim protection during the course of investigation and even if the material collected during investigation is taken on its face, no offence under SC/ST Act would emerge.

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It is further submitted that the applicant/ appellant is ready to cooperate in the trial as she has cooperated in the investigation and would remain present before the trial court as and when her presence would be required. She is a lady and is not having any criminal antecedent and there is no apprehension that the accused-appellant after release on bail, may flee from the process of law or may otherwise misuse the liberty.

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Learned A.G.A. on the other hand opposes the prayer of anticipatory bail of the applicant on the ground that the

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applicant/ appellant has committed heinous offence and after finding sufficient material charge sheet has been filed against her also.

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Having heard learned counsel for the parties and having perused the record, it may not be disputed that a Coordinate Bench of this Court, vide order dated 7.6.2022 after taking into account all the aspect of the matter found substance in the submissions made by learned counsel for the appellant and granted interim protection from the arrest during the course of investigation, vide interim order dated 7.6.2022. The only situation which appears to have changed since then is the submission of charge sheet against the appellant and co-accused persons. This factual aspect has been taken care of by the Hon'ble Supreme Court in its celebrated constitutional Bench judgment of Sushila Aggarwal vs. State (NCT of Delhi) (supra) , wherein it is provided that the submission of the charge sheet may not extinguish the right of accused person to get himself or herself released on anticipatory bail, if he/she is otherwise entitled for. It also appears to be in admitted situation that the allegations against the appellant are not of abducting or kidnapping rather the same are only with regard to giving shelter to the main accused and the victim and it is with regard to this it is submitted that even if the material collected during investigation is taken on its face, no offence under SC/ST Act will emerge against appellant

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Thus, having regard to all the facts and circumstances of the case and also having an eye that during the course of investigation the appellant has cooperated throughout and she is not having any criminal history, a case of anticipatory bail is emerging in favour of the appellant.

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In result, the appeal filed by the appellant- Fatima is allowed and the order dated 11.10.2023 is hereby set-aside and it is provided that in the event of arrest of appellant under any process of the Court or on her appearance/ surrender before the trial court within 20 days from today i.e. on or before 15.09.2024, whichever is earlier, he shall be released forthwith on anticipatory bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the Trial Court concerned, subject to the following conditions::

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The applicant if not arrested earlier, shall surrender before the trial court within 20 days from today i.e. on or before 15.09.2024 and will cooperate in the trial.

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The applicant shall Cooperate in the investigation and will make himself available as and when required by the

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Investigating officer of the case, even for the recovery of any fact, if the case is directed to be further investigated.

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The applicant shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during his release on anticipatory bail.

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The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence and especially when the prosecution witnesses are present in court.

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The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.

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If in the opinion of the trial court default of any of the condition placed above is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and shall proceed against him in accordance with law.

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It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the proceedings before the trial court in any manner.

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Order Date :- 27.8.2024

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Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Fatima v. the State of U.P. Thru. Its Secy. Home, Lko. and Another

Case brief

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Fatima v. the State of U.P. Thru. Its Secy. Home, Lko. and Another

Case brief

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