Ziauddin Ahmad Khan Vs State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko and Another

Neutral Citation No. - 2025:AHC-LKO:8175

Court No. - 31

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1725 of 2024

Applicant :- Ziauddin Ahmad Khan Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko And Another Counsel for Applicant :- Amjad Siddiqui,Abhishek Srivastava,Mohemmed Amir Naqvi Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Singh,J.

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The instant matter is taken up through video conferencing from Allahabad.

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Earlier, the applicant was granted anticipatory bail till submission of police report under Section 173(2) Cr.P.C. vide order dated 21.11.2022 by this Court in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 1948 of 2022.

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This Second Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicant before this court after submission of charge-sheet seeking Anticipatory Bail in Case Crime No. 0212 of 2022, under Sections 377, 498A, 323, 504, 506 IPC and Section 3/4 Dowry Prohibition Act, Police Station Sadatganj, District Lucknow.

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Brief facts of the case which are required to be stated are that complainant, who is wife of the applicant, has lodged an FIR on 05.09.2022 with regard to an incident which took place on 25.06.2022 for the alleged offence under Sections 377, 313, 498A, 323, 504, 506 IPC and Sections 3/4 of D.P. Act alleging inter-alia that she was married with the applicant on 13.01.2022. Thereafter she stayed for about 5 months in her matrimonial home but her husband used to make sexual relations with her against her wishes and also made carnal intercourse with her and when she opposed, she was threatened. FIR also alleges that she became pregnant but the applicant took her for medical checkup to the hospital and made her foetus aborted in May, 2022. In the night of 17.06.2022, her husband made her fall down on the bed and forcibly raped her and she was thrown out of her matrimonial house.

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On 06.01.2025, following order was passed by this Court :-

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"The matter is taken up through video conferencing from Allahabad.

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On the matter being taken up, none appears on behalf of the applicant to press this anticipatory bail application, whereas Ms. Parul Kant, learned Additional Government Advocate representing the State is present and submits that the matter was earlier listed and taken up on 22.11.2024 and 13.12.2024, but on those dates also none appeared on behalf of the applicant to address the Court, whereas, in view of provisions of sub-Section (5) of Section 438 Cr.P.C. of the State Amendment vide U.P. Act No. 4 of 2019, the anticipatory bail application under sub-Section (1) of Section 438 Cr.P.C. has to be disposed of within 30 days.

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Let a report be called for from the concerned Presiding Officer with regard to present status of trial of the applicant.

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List this case again on 07.02.2025."

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Today also, on the matter being taken up, none appears on behalf of the applicant to press this anticipatory bail application whereas Ms. Parul Kant, learned A.G.A.-I representing the State is present.

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In view of the above, I myself have perused the record of this case with assistance of learned A.G.A.

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Learned A.G.A. for the State pointed out that after culmination of investigation, charge-sheet was submitted on 16.12.2022 against the applicant and there are sufficient material against him, therefore, as on date, cognizable offence is made out against him and it cannot be presumed that he has been falsely implicated.

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Having heard the submission of learned A.G.A. and perusing the record, I find that pursuant to order dated 06.01.2025, trial Court submitted its report dated 05.02.2025 mentioning therein that on charge-sheet dated 16.12.2022, cognizance was taken on 31.03.2023 and the applicant was summoned but on nonappearance of the applicant, bailable warrant is going on since 31.08.2024.

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Object of Section 438 of the Code of Criminal Procedure is that a person should not be unnecessarily harassed or humiliated in order to satisfy personal vendetta or grudge of complainant or any other person operating the things directly or from behind the curtains. It is well settled that discretionary power conferred by the legislature on this court cannot be put in a straitjacket formula, but such discretionary power either grant or refusal of

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anticipatory bail has to be exercised carefully in appropriate cases with circumspection on the basis of the available material after evaluating the facts of the particular case and considering other relevant factors (nature and gravity of accusation, role attributed to accused, conduct of accused, criminal antecedents, possibility of the applicant to flee from Justice, apprehension of tampering of the witnesses or threat to the complainant, impact of grant of anticipatory bail in investigation, trial or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.

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In the light of above, looking to the facts and circumstances of this case as well as considering the reasons noted above, this Court is of the view that after submission of charge-sheet, no case for exercising its discretionary power under Section 438 Cr.P.C. is made out in favour of applicant.

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Accordingly, this anticipatory bail application under Section 438 Cr.P.C. is rejected .

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It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case. The concerned Court below shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials / evidences on record.

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Order Date :- 7.2.2025 Shubham

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

Ziauddin Ahmad Khan v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko and Another

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Ziauddin Ahmad Khan v. State of U.P. Thru. Prin. Secy. Home Civil Sectt. Lko and Another

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