Shakir v. State of U.P

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13478 of 2023 Applicant :- Shakir Opposite Party :- State of U.P. Counsel for Applicant :- Rajesh Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant, learned A.G.A. for the State perused the record.

¶3Apprehending his arrest in Case Crime No.193 of 2023, under Sections 147, 148, 149, 307, 452, 323, 325, 506 IPC, Police Station Shergarh, District Mathura, the applicant - Shakir has filed this anticipatory bail application seeking anticipatory bail in the aforesaid crime number.

¶4The named accused persons in association with 2 to 3 unknown persons came to the house of the informant / injured and made an assault upon him with the aid of lathi and danda and two persons also opened fire upon him with intention to kill. The informant sustained injuries. F.I.R. was lodged on 11.8.2023 and investigation started, which is going on.

¶5Learned counsel for the applicant submits that that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. He has been falsely implicated in this matter. Allegations levelled against the applicant are false. Investigation is going on into the matter. It is further submitted that in fact, it is a no injury case and the informant in his statement given to the I.O. and also at the police station at the time of lodging of the F.I.R. has made categorical statement that he had not been medically examined and he did not receive any visible injury. Surprisingly, after few days, he was medically examined and serious injury was found in the ultrasound report. It is also submitted that in the F.I.R. version it has been averred that it is only the informant, who received injuries, but surprisingly enough, after few days, another person named Nizam came forward as an injured of the case. It is also submitted that after finding fracture in the injury of the informant, section 325 IPC was added in the matter. It is also submitted that section 307 IPC was mentioned in the F.I.R. only because of the allegation of firing upon the informant, but as a matter of fact, he has received no firearm injury. It is further submitted that the applicant has no criminal history to his credit. It is further submitted that the applicant is cooperating with the investigation of the case. No custodial interrogation is required in the matter. In case the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.

¶6Per contra, learned A.G.A. opposed the prayer for anticipatory bail and it has been submitted that the informant has been brutally assaulted by the accused persons and the present applicant played an active role in the commission of the alleged crime. The doctor has opined that the injury of the injured was grievous in nature, however the learned A.G.A. could not dispute this factual aspect that no firearm injury was caused to the informant or any other injured whereas it was alleged in the F.I.R. that fire was made with intention to kill the informant by two persons at the time of incident.

¶7Investigation into the matter is going on and the applicant is cooperating with the investigation. No firearm injury has been brought to the notice of the Court.

¶8In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held 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.

¶9In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

¶10Considering 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 the filing of police report under section 173 (2) Cr.P.C. before the competent Court.

¶11The anticipatory bail application is allowed.

¶12In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail till the filing of police report under section 173 (2) Cr.P.C. before the competent Court on his furnishing a personal bond of Rs.50,000/-with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

(i) The applicant shall make himself available for interrogation by a police officer as and when required.

(ii) The applicant 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 him/her from disclosing such facts to the Court or to any police office.

(iii) The applicant 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.

¶13In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant. Order Date :- 13.12.2023 ss High Court of Judicature at Allahabad