Pappu @ Gulfam and 2 Others v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11803 of 2023 Applicant :- Pappu @ Gulfam And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Syed Shahnawaz Shah Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Supplementary Affidavit filed today is taken on record.

¶2Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.

¶3Apprehending his arrest, the present anticipatory bail application has been filed on behalf of the applicant - Pappu @ Gulfam, Istakbal and Shaukeen in Case Crime No.260 of 2012, under Sections 147, 148, 149, 322, 225, 332, 333 I.P.C., Police Station Saroorpur, District Meerut, with a prayer to enlarge them on anticipatory bail.

¶4One small child was kidnapped by one Janeshwar. When the police made a search the villagers caught Janeshwar and started assaulted him and when the police intervened, assault was also made upon the police party. The first information report was lodged against several persons and after investigation, charge-sheet was submitted.

¶5Learned counsel for the applicant submits that the applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against them. They have been falsely implicated in this matter. Allegations levelled against the applicants are false. The investigation of the case has been completed and charge-sheet has been filed. It is further submitted by the learned counsel for the applicants that no specific role of assault has been assigned to any of the accused persons. It is further submitted that during investigation the applicants have been cooperated throughout. It is also submitted that the co-accused Arif, Masarup alias Masaruph, Israr alias Ikrar alias Birji, Vishal alias Bilad, Dilshad and Shabir, having identical role in this matter, have already been granted bail by a co-ordinate Bench of this Court in Criminal Misc. Anticipatory Bail Application No.8556 of 2023 vide order dated 10.08.2023. He further submitted that the co-accused Isalm and Istkar having identical role have already been granted bail by this Bench in Criminal Anticipatory Bail Application No.7807 of 2023 vide order dated

14.07.2023. Further submitted that the applicants have no criminal history to their credit. After submission of charge-sheet, no coercive process has been issued against the applicants and as such they are entitled for anticipatory bail.

¶6Per contra, learned A.G.A opposed the prayer for anticipatory bail but could not dispute this factual aspect of the matter that the applicants have been cooperative during the investigation.

¶7Although charge sheet has been submitted in this matter but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

¶8In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex Court has held that : "11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87CrPC that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

¶12Insofar as the present case is concerned and the general principles under Section 170CrPC, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

¶9Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till end of the trial in the matter.

¶10The anticipatory bail application is allowed.

¶11In the event of arrest of the applicants in the aforesaid case crime, they shall be released on anticipatory bail till end of the trial on their furnishing a personal bond of Rs. 50,000/-with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :-

(i) The applicants shall make themselves available before the court concerned on the date fixed in the matter;

(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 India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

¶12In case of default of any of the conditions, same may be a ground for cancellation of protection granted to the applicants. Order Date :- 6.12.2023 SFH High Court of Judicature at Allahabad