Allahabad High Court
Khaliquzzama Khan vs State Of U.P. on 16 July, 2021
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 67 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12438 of 2021 Applicant :- Khaliquzzama Khan Opposite Party :- State of U.P. Counsel for Applicant :- Mukesh Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Rahul Chaturvedi,J.
(1) Heard, learned counsel for the applicants, learned AGA for the State and perused the material brought on record.
(2) The instant application is being moved by the applicants Uttam Kumar and Satya Singh invoking the powers of Section 438 Cr.P.C., apprehending their arrest in connection with Case Crime No.173 of 2021, under Sections 419, 420, 467, 468 and 471 IPC, P.S. Kotwali Padrauna, District Kushinagar during the pendency of the trial.
(3) The instant anticipatory bail application is being filed by the applicant aggrieved by the order dated 21.05.2021 by which learned trial court has rejected their anticipatory bail application. Hence, the present anticipatory bail application.
(4) Learned counsel for the applicants has drawn the attention of the court to Clause-7 of Section 438 Cr.P.C. (U. P. Act No. 4 of 2021), which read thus :
"(7 an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Sessions."
After interpreting the aforesaid clause it is clear that the Legislature in its wisdom bestowed two avenues open for the accused. If the accused has chosen to come to the High Court straightway, then he would not be relegated back to exhaust his remedy before the Court of Sessions first.
(5) Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Vs. State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned AGA as per Section 438 (3) Cr.P.C. (U.P.Amendment) is not required.
(6) It has been contended by the learned counsel for the applicants that the applicants have got no criminal antecedents and they have not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced by learned counsel for the applicants on behalf of the applicants that they would render all requisite co-operation and assistance in the process of law and with the investigation agency and shall not create any hindrance to reach to its logical conclusion and shall not flee away from the course of justice.
(7) Learned counsel for the applicants has strenuously argued that the applicants have been made target just to besmirch their reputation and belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicants to demonstrate the falsity of the accusation made in the FIR against the applicants by the informant. Learned counsel for the applicants has also relied upon the judgements in the case of Arnesh Kumar Vs. State of Bihar and another reported in (2014) 8 SCC 273; Jogender Kumar Vs. State of U.P. and others reported in (1994) 4 SCC 260 and Sanaul Haque Vs. State of U.P. and another reported in (2008) Crl.L.J. 1998, to buttress his contention.
(8) In the case of Arnesh Kumar (supra) Hon'ble Apex Court has opined that the pith and core is that the police officer before arrest must put questions to himself, Why arrest?, Is it really required?, What purpose it will serve?, What object it will achieve? If it is only after these questions are addressed and one or other conditions, as enumerated above, are satisfied, the power of arrest needs to be exercised. Before the arrest the police office should have a reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to satisfy further that the arrest is necessary for one or more purposes envisaged in sub-clauses (a) to (e) to Clause-I of Section 438 Cr.P.C.
(9) In this backdrop of legal proposition, learned counsel for the applicant has submitted that the present FIR was lodged by one Dr. Satish Chandra with the allegation that the present applicant who is a Director of the Star Life Hospital, Padrauna, Kushinagar, has misused the guidelines of Pradhanmantri Ayushman Jan Arogya Yozana that instead of Dr. R.K.Vishwakarma, the surgery of one patient, namely, Radheyshyam was conducted by Dr. Sharik. Learned counsel for the applicant submitted that to this effect, an inquiry was conducted by CMO, Kushinagar and from the perusal of the inquiry report it indicates that though the alleged surgery of Radheyshyam was shown by Dr. R.K.Vishwakarma, but instead of Dr. Vishwkarma, the said surgery was conducted by Dr. Sharik and on this score, the present FIR was got registered. There is no dispute to the fact that the surgery was conducted. From the perusal of the FIR, it is clear that the Court prima facie feels that Sections 419, 420, 467, 468 and 471 IPC are not attracted in the present case.
(10) Per contra, learned AGA has vehemently opposed the anticipatory bail application by mentioning that though the applicants have got no criminal antecedent but there is nothing on record to satisfy that the police personnel are after the applicants to arrest them. The alleged apprehension on behalf of applicants is imaginary and unfounded one. Learned AGA has also submitted that in view of the seriousness of the allegations made in the FIR, the applicants are not entitled for any relaxation from this Court.
(11) After considering the record of the case as available before the Court, in the light of rival submissions made at the Bar and keeping in view the nature and gravity of the accusation, antecedents of the applicants, their undertaking to make themselves available to the authorities whenever required, the Court feels satisfied that it would be expedient to grant an order of anticipatory bail in favour of the applicants. Thus, the instant Anticipatory Bail Application stands ALLOWED.
(12) Without expressing any opinion upon ultimate merits of the case either ways which may be adversely affect the investigation and subsequent stage of the case, the Court directs that in the event of arrest of the applicants in aforesaid case crime, they shall be released on bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the line amount to the satisfaction of the Arresting Officer with the condition that :-
(I) The applicants shall make themselves available for the interrogation by the police as and when required. The Investigation Officer of the case would give 48 hours prior notice or telephonically inform the concerned accused-applicant to remain available to him for the purpose of interrogation and the accused-applicants are obliged to abide by such directions.
(II) The applicants shall not directly or indirectly make any inducement, threats or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.
(III) The Investigating Officer of the case would make all necessary endeavour to gear up the investigation in utmost transparent and professional way and would try to conclude the same within a maximum period of 90 days. During this period the accused-applicants would not leave the State of Uttar Pradesh without informing the Investigating Officer of the case and sharing his contact number.
(IV) In the event the applicants are having their passports, they will have to surrender the same before the concerned SP/SSP of the District till the submission of report under Section 173(2) Cr.P.C.
(13) In the event, the applicants breach or attempt to breath any of the aforesaid conditions or wilfully violate above conditions or abstains themselves from the investigation, it would be open for the Investigating Officer or the concerned authority to apply before the court of Sessions for cancellation of bail and the Court of Sessions has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.
has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.
Order Date :- 16.7.2021 Abhishek Sri.