Allahabad High Court
Taj Mohamad (Anticipatory Bail) vs State Of U.P.And Anr. on 27 July, 2020
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 14 Case :- BAIL No. - 3037 of 2020 Applicant :- Taj Mohamad (Anticipatory Bail) Opposite Party :- State Of U.P.And Anr. Counsel for Applicant :- Anurag.S.'Kaalesh' Hon'ble Chandra Dhari Singh,J.
Heard learned counsel for the applicant, learned AGA and perused the record.
The accused-applicant seeks anticipatory bail in connection with Case Crime No.248 of 2018 under sections 419, 420, 467, 468, 471, 324, 376D, 385, 406, 506 I.P.C. and section 3 (2)(v) S.C./S.T. and 67-A of the I.T. Act, Police Station B.K.T., Lucknow.
The allegations, in the first information report, in brief, are that the complainant has received a phone call on her mobile no.9648239715 from Mobile No.8303250233. It is contended that the caller has introduced himself as Amit Singh and he proposed her for friendship. Inspite of changing her mobile number, Amit Singh repeatedly called on her new mobile number of complainant and on one day he said that he is well connected with a Minister and other higher government officials. He offered job to the complainant. The complainant believed him and gave all her original educational certificates to Amit Singh. After a period of one month, Amit Singh demanded rupees five lakhs as a bribe for the job . The complainant, after arranging some money gave rupees fifty thousand to the co-accused Amit Singh.
It is further alleged in the first information report that when nothing had been done, the complainant asked for her educational certificates and other documents from the co-accused. On demanding the educational certificates, one day the alleged Amit Singh called the complainant near the 'Residency' and gave some intoxicated drink and committed rape upon her. On coming to know the actual name of alleged Amit Singh as Mohd. Azaz, the complainant decided to make a complaint against him, on which Amit Singh @ Mohd. Azaz threatened her and said that in case, any complaint is made, he will destroy her career as he has some obscene photographs and the same will be uploaded on social media. The complainant was continuously raped by alleged Amit Singh @ Mohd. Azaz and his friends for a number of times. The complainant was forced to perform marriage with Amit Singh @ Mohd. Azaz. The signature of the complainant was also forcibly taken on a paper, which was written in Urdu Script. The complainant and her father were continuously threatened by the accused persons.
It is also alleged in the first information report that alleged Amit Singh @ Mohd Azaz asked the complainant that he has an agent in foreign who will send money in her account, which has to be transferred in the accounts of the present accused applicant Taz Mohammad and in other certain accounts and they used this money for the purpose of illegal activities. Amit Singh @ Mohd Azaz and his associates have sexually harassed the complainant. The accused and his associates are professional criminals armed with illegal weapons. Thus, complainant has lodged the first information report.
After investigation, the police has filed the charge-sheet.
With this background, learned counsel for the applicant has submitted that the applicant is not named in the first information report. The applicant's name came in light in the statement of the complainant recorded under section 161 Cr.P.C. on 08.11.2018 in which she first time took the name of the present applicant assigning the role of financial assistance to his brother in law in all the episode. She has also stated that her original educational mark-sheet and other documents are also with the present applicant. Learned counsel for the applicant has also submitted that the applicant is the brother in law of the main accused Mohd. Azaz and therefore, she has taken his name, though he has not committed any rape upon her. It has also been submitted that there is no specific allegation against the present applicant in the first information report and the only the allegation, as per the statement, is that he is the custodian of the educational mark-sheet of the victim. It is further submitted that if all the evidence against the present applicant be considered, the only charge of the offence punishable under section 506 IPC is made out.
Learned counsel for the applicant has also submitted that other charge-sheeted persons namely Sagir Jamali, Mohd. Arshad and Javed have been granted bail by this Hon'ble Court in Crl. Appeal No.816, 817 and 818 of 2019. Further submission of learned counsel for the applicant is that if the Hon'ble Court considers the statements of the victim, no charge of rape or under SC/ST Act is made out against the present applicant. The accused applicant has no concern with the alleged crime and he has been falsely implicated by the informant in this case only because he is brother in law of the main accused Mohd. Azaz.
On the other hand, learned AGA for the State has vehemently opposed the submissions made by the learned counsel for the applicant and submitted that the present applicant has been charged for commission of the heinous crime i.e. 376-D. The victim was continuously raped by all the accused persons and her religion was also forcibly converted by co-accused Amit Singh @ Mohd. Azaz.
Learned counsel for the State further submitted that after perusal of the statements of the victim as well as the allegations made in the first information report, there are no grounds available for him to put on anticipatory bail. He further submitted that there is likelihood of the present applicant to tamper with the evidence if he is on anticipatory bail. It has also been submitted that the custodial interrogation of the applicant is required to ascertain the facts of the case. The application being devoid of merit is liable to be rejected.
I have perused the statements of the prosecutrix as well as the allegations made in the first information report. On consideration of rival submissions put forth on behalf of either side, it is essential to observe that the first information report, in the instant case, is indicated to have been registered on 22.04.2018 in relation to the allegations made including the alleged gang rape on the prosecutrix by the accused persons. As per the investigation conducted and also in the statement of the victim recorded, the prosecutrix has specifically taken the name of the present applicant and stated that the applicant was involved in the incident.
It is clear from a bare reading of the provisions that for making an application in terms of Section 439 of the Code, a person has to be in custody. Section 438 of the Code deals with "Direction for grant of bail to person apprehending arrest".
In Salauddin Abdulsamad Shaikh vs. State of Maharashtra reported at (AIR 1996 SC 1042), Hon'ble the Apex Court has observed that:
"Anticipatory bail is granted in anticipation of arrest in non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and, therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge-sheet is submitted".
As observed in Salauddin's case (supra) the protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under sections 438 and 439 shall be rendered meaningless and redundant.
Hon'ble the Apex Court in the case of Vaman Narain Ghiya vs. State of Rajasthan (Criminal Appeal No.406 of 2008) decided on 12.12.2008 has held that :
12. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has `reason to believe' that he may be arrested in a non-bailable offence. Use of the expression `reason to believe' that he may be arrested in a non-bailable offence. Use of the expression `reason to believe' shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not `belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the Court concerned to decide whether a case has been made out of for granting the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such `blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device is secure the individual's liberty' it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.
13. "Bail" remains an undefined term in the Cr.P.C. Nowhere else the term has been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints since the U.N. Declaration of Human Rights of 1948, to which Indian is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression `bail' denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb `bailer' which means to `give' or `to deliver', although another view is that its derivation is from the Latin term baiulare, meaning `to bear a burden'. Bail is a conditional liberty. Strouds' Judicial Dictionary (Fourth Edition 1971) spells out certain other details. It states:
"When a man is taken or arrested for felony, suspicion of felony, indicated of felony, or any such case, so that he is restrained of his liberty - And being by law bailable, offence surety to those which have authority to bail him, which sureties are bound for him to the Kings use in a certain sums of money, or body for body, that he shall appear before the Justices of Goale delivery at the next sessions etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed, that is to say, set at liberty until the day appointed for his appearance."
14. Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.
The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt.
15. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the mis-adventures of a person alleged to have committed a crime; and on the other, the fundamental cannon of criminal jurisprudence, viz, the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restrain, the more restraint on others to keep off from us, the more liberty we have (See A.K. Gopalanvs. State of Madras AIR 1950 SC 1000) Hon'ble the Apex Court in the case of Siddharam Sattlingappa Mhetre vs. State of Maharashtra reported at (2011) 1 SCC 694 has laid down the following factors and parameters to be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii.The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of section 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
Taking into account the totality of the facts and circumstances of the case as also the law laid down by Hon'ble the Apex Court, I have reached at the conclusion that the present applicant is involved in the crime and has been charged for the heinous crime. From the perusal of the first information report, it is apparent that the applicant and his associates are involved in antisocial activities. The offences are serious in nature and thus, I do not find it to be a fit case for putting the accused applicant on anticipatory bail.
Accordingly, the instant application for anticipatory bail is rejected.
Order Date :- 27.7.2020 VNP/-