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Allahabad High Court
Azami Khan @ Agahaz Ahmad vs State Of U.P. And Another on 22 February, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. – 2024:AHC:30617
Court No. – 76
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. – 922 of 2024
Applicant :- Azami Khan @ Agahaz Ahmad
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mrityunjay Dwivedi
Counsel for Opposite Party :- G.A.
Hon’ble Sameer Jain,J.
1. Sri Jhamman Ram, learned AGA-I for the State apprised the Court that he has received the instructions, therefore, instant anticipatory bail application may be finally disposed off.
2. Heard Sri Mrityunjay Dwivedi, learned counsel for the applicant, Sri Rajiv Tiwari and Sri R.K.R. Sharma, learned counsels for the informant and Sri Jhamman Ram, learned AGA-I for the State.
3. The present anticipatory bail application has been filed on behalf of the applicant in F.I.R./Case Crime No. 103 of 2023, under Sections 498A, 323, 313, 354 IPC and Section 3/4 D.P. Act, Police Station Civil Lines, District Aligarh with a prayer to enlarge him on anticipatory bail during trial.
4. FIR of the present case was lodged on 20.02.2023 against applicant and five others and according to the FIR applicant is Nandoi of the informant and marriage of the informant was performed with Waseem Khan and after marriage Waseem Khan and his family members tortured her for demand of dowry. It is further mentioned in the FIR that applicant is also having bad intention towards the informant and when informant second time conceived then against her wishes on the instigation of other accused persons applicant, who was doctor, gave injection to her and after the injection informant caused miscarriage.
5. Learned counsel for the applicant submits that entire allegation made against the applicant is totally false and in the FIR there is no allegation that applicant ever tortured the informant for want of dowry and only allegation against applicant is that he was doctor and on the instigation of other accused persons he gave injection to the informant due to which her miscarriage was caused.
6. He further submits that applicant is not a doctor, therefore, there was no occasion for him to give injection to the informant. He further submitted that however informant in her statement recorded under Section 161 Cr.P.C. repeated the version of the FIR but when her statement under Section 164 Cr.P.C. was recorded then she changed her version and stated that her mother-in-law gave her pills and after that her miscarriage was caused.
7. He further submits that during investigation, when Investigating Officer recorded the statement of Dr. Seema then she stated that informant informed her that she herself consumed medicine for miscarriage, therefore, at different stages informant narrated different story.
8. He further submits that this Court enlarged the applicant on anticipatory bail during investigation till submission of police report under Section 173(2) Cr.P.C. He further submits that now charge-sheet has been filed and when applicant came to know that coercive measures are being taken against him then he filed anticipatory bail application before the court concerned but his anticipatory bail application was dismissed.
9. He further submits that applicant is not having any criminal history and he is having apprehension that if he will appear before the court concerned then he will be sent to jail. He further submits that after submission of the charge-sheet custodial interrogation of the applicant does not appear to be necessary.
10. Per contra, learned AGA as well as learned counsels for the informant opposed the prayer for anticipatory bail and submitted that applicant is the person who caused miscarriage of the informant and informant in her statement recorded under Section 161 Cr.P.C. and even in the FIR specifically narrated this fact but neither learned AGA nor learned counsels appearing on behalf of the informant could dispute the fact that in the statement recorded under Section 164 Cr.P.C. informant herself stated that her mother-in-law provided pills and after consumption of the same her miscarriage was caused.
11. They further could not dispute the fact that during investigation applicant was on anticipatory bail till submission of police report under Section 173(2) Cr.P.C. However, learned counsel appearing on behalf of the informant submitted that after submission of the charge-sheet applicant willfully evaded the process of law and failed to appear before the court concerned and now N.B.W. has been issued against him. He further submits, after submission of the charge-sheet applicant and others filed an Application U/S 482 Cr.P.C. No. 40035 of 2023 before this Court and on 30.11.2023 their application was dismissed, therefore, considering the facts and circumstances of the case, applicant should not be released on anticipatory bail.
12. I have heard learned counsel for the parties and perused the record of the case.
13. From the record, it reflects that applicant is the Nandoi of the informant and there is no allegation against him for demand of dowry and allegation against him is that he is doctor and he on the instigation of other accused persons gave injection to the informant and thereafter her miscarriage was caused but from the statement of the informant recorded under Section 164 Cr.P.C., which has been annexed as Annexure-3 to the affidavit, it reflects that mother-in-law of the informant provided her pills and thereafter her miscarriage was caused, therefore, there are material contradiction in the allegation of the FIR and in the statement of victim recorded under Section under Section 161 Cr.P.C. and in her statement recorded under Section 164 Cr.P.C.
14. Further, from the record, it also reflects that during investigation Investigating Officer recorded the statement of one Seema, who was doctor, and she stated in her statement that informant informed her that she herself consumed pills and thereafter her miscarriage was caused, therefore, this Court finds force in the argument advanced by learned counsel for the applicant that informant changed her story at different stages.
15. However, from the record it reflects that after submission of the charge-sheet applicant and others challenged the same before this Court in Application U/S 482 Cr.P.C. No. 40035 of 2023 and his application was dismissed on 30.11.2023 but in view of this Court merely by dismissal of application u/s 482 Cr.P.C. it cannot be said that applicant cannot seek anticipatory bail under Section 438 Cr.P.C.
16. The Apex Court in the case of Vinod Kumar Sharma and others Vs. State of U.P. and others 2021 SCC Online SC 3225 observed that even after rejection of application u/s 482 Cr.P.C., anticipatory bail application is maintainable.
17. Further, during investigation it appears that applicant is on anticipatory bail till submission of police report under Section 173(2) Cr.P.C. and now charge-sheet has been filed and after submission of charge-sheet, custodial interrogation of the applicant does not appear to be necessary. Further, apprehension of custody raised by the applicant cannot be completely ruled out.
18. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on anticipatory bail till conclusion of trial.
19. Accordingly, without expressing any opinion on the merits of the case, the instant anticipatory bail application is allowed.
20. In the event of arrest of the applicant- Azami Khan @ Agahaz Ahmad involved in the aforesaid case crime number, shall be released on bail till the conclusion of trial on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Presiding Officer/Court Concerned, with the conditions:-
i. that 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 from disclosing such facts to the court or to any police officer or tamper with the evidence;
ii. that the applicant shall not leave India without previous permission of the court;
iii. that the applicant shall not tamper with the evidence during the trial;
iv. that the applicant shall not pressurize/ intimidate the prosecution witness;
v. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
21. In case of breach of any of the above conditions, the court concerned shall have the liberty to cancel the bail granted to the applicant.
22. It is made clear that observations made in granting anticipatory bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 22.2.2024
AK Pandey
