Allahabad High Court
Mohd. Salim @ Mohd. Salim Qureshi And ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 19 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:14435 Court No. - 15 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 309 of 2024 Applicant :- Mohd. Salim @ Mohd. Salim Qureshi And Another Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. U.P. Counsel for Applicant :- Vinod Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
1. Shri Jyotindra Mishra, learned Senior Advocate assisted by Shri Vinod Kumar Singh, learned counsel for the applicants, Shri Navneet Kumar Srivastava, learned counsel appearing for the complainant/informant as well as learned A.G.A. for the State and perused the record.
2. The instant application has been moved by the applicants- Mohd. Salim @ Mohd. Salim Qureshi and Imran @ Mohd. Imran Qureshi, in F.I.R./Case Crime No. 0294 of 2017, under Sections 147, 323, 504, 452 and 376-D I.P.C., Police Station- Safdarganj, District - Barabanki, with the prayer to enlarge them on anticipatory bail, as they are apprehending arrest in the above-mentioned case.
3. Shri Jyotindra Mishra, learned Senior Advocate submits that in Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No.- 127 of 2024 pertaining to co-accused- Mohd. Salman, a preliminary objection was raised on behalf of the State that the aforesaid anticipatory bail application may not be maintainable before this Court in view of the amendment made in the State of U.P. under Section 438 Cr.P.C. and a compliance affidavit was filed by the State therein, wherein it was specifically stated that though, an amendment has been proposed by the State under Section 438 Cr.P.C., however, the same has not received accent of the Hon'ble President of India, yet. Thus, this proposed amendment may not be applicable within the territory of State of Uttar Pradesh without the consent/assent of Hon'ble President of India. Therefore, this anticipatory bail application is maintainable before this Court.
4. Shri Jyotindra Mishra, learned Senior Counsel, while drawing the attention of this Court towards the summoning order passed by the trial court of date 22.03.2022 whereby the applicants have been summoned to face trial amongst others under Section 376-D I.P.C. also and the impugned order dated 16.12.2023 whereby the request of the applicants for grant of anticipatory bail has been rejected, further submits that the allegations which have been made by the prosecutrix/victim in the F.I.R., which has been lodged by moving an application under Section 156(3) Cr.P.C. as well as in her statement recorded under Section 161 and 164 Cr.P.C. are patently false, concocted and could not be believed.
5. It is further submitted that initially after thorough investigation the 'Final Report/Closure Report' was submitted, however, the same was not accepted and further investigation was directed. However, even after further investigation 'Closure Report/Final Report' was submitted again and the trial court without there being any basis, on a protest petition filed by the informant/victim, has taken cognizance under Section 190(1)(b) of the Cr.P.C. and summoned the applicant s amongst other penal sections under Section 376-D I.P.C. also.
6. It is vehemently submitted that when the trial court was taking cognizance under Section 190(1)(b) Cr.P.C., the material, which has been collected by the investigating officer during the course of investigation and the observations made by him may not be brushed aside lightly and the same has to be taken in right perspective while the order, whereby the applicants have been summoned to face trial and cognizance has been taken under Section 190(1)(b) Cr.P.C. is devoid of such exercise.
7. It is also submitted that since the investigation has been conducted twice and in both the investigation the applicants have been found innocent and no culpability was attached with any conduct of the applicants, it is apparent that the story as cooked up by the prosecutrix is highly doubtful and could not be believed.
8. It is further submitted that the applicant No.2 and other co-accused person- Mohd. Salman had earlier approached this Court by filing a Writ Petition No. 7765 of 2022 and the same was admitted for being considered on merits and an observation was also made by this Court therein that till the next date of listing, the trial court shall pay due regard to the fact that the instant writ petition is pending before this Court for consideration.
9. It is next submitted that applicants are ready to cooperate in the trial and since they have not been arrested during the course of investigation, there is no logic in sending them to prison only for the purpose of getting the regular bail decided, moreso when they are not having any criminal history.
10. Learned A.G.A. on the other hand submits that having regard to the allegations levelled by the informant/victim in the F.I.R. as well as in the statements recorded under Section 161 and 164 Cr.P.C., the applicants are not entitled for any protection.
11. Having heard learned counsel for the parties and having perused the record, it is evident that the allegations of the F.I.R., which has been lodged by moving an application under Section 156(3) Cr.P.C. has been investigated twice and on both the occasions, the investigating officer has submitted the 'Final Report/Closure Report'. It was only on account of a protest petition moved by the informant/victim, the trial court has taken cognizance under Section 190(1)(b) Cr.P.C. and summoned the applicants to face trial amongst other under Section 376-D I.P.C. Various submissions have been raised by learned Senior Counsel in order to canvass that the parties are highly inimical towards each other. They are having established dispute and the instant allegations against the applicants are nothing but has been alleged on account of revenge.
12. Having regard to all the facts and circumstances of the case, in the considered opinion of this Court, liberty of the applicant may be protected till the next date of listing.
13. Thus, list this case on 06.03.2024 in the top ten cases of the cause list, by which date the State as well as learned counsel for the complainant/informant may file counter affidavit/objections with regard to the prayer of anticipatory bail of the applicant.
14. It is provided that till the next date of listing, in the event of arrest of the applicants- Mohd. Salim @ Mohd. Salim Qureshi and Imran @ Mohd. Imran Qureshi,, in the above-mentioned case under any process of the trial court or on their appearance/surrender before the trial court within 20 days, whichever is earlier, they shall be released forthwith on anticipatory bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Trial Court/ Station House Officer of the Police Station concerned/ Investigating Officer subject to the following conditions:-
(i) The applicants shall make themselves available for interrogation or even for discovery of any fact by a police officer as and when required, in case further investigation is directed;
(ii) The applicants 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 them from disclosing such facts to the Court or to any police officer;
(iii) The applicants shall not leave the country concerned without the previous permission of the Court.
15. Applicants shall remain present before the trial court as and when their presence would be required and they would not take adjournment especially when the prosecution witnesses would be in attendance.
16. 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 their bail and shall proceed against them in accordance with law.
17. 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 trial proceedings in any manner.
Order Date :- 19.2.2024 Gurpreet Singh