Advocates:
['ABU BAKHT', '', 'SYED AHMED FAIZAN', 'G A']

Court No. - 71

Case :- CRIMINAL MISC ANTICIPATORY BAIL

APPLICATION U/S 438 CR.P.C. No. - 2297 of 2022

Applicant :- Khurshid

Opposite Party :- State Of U.P Through Secretary Home And

Another

Counsel for Applicant :- Abu Bakht,Syed Ahmed Faizan

Counsel for Opposite Party :- G.A.

Hon'ble Samit Gopal,J.

Notice was issued to the first informant vide order dated

25.03.2022. As per the office report dated 29.04.2022, a report

dated 29.04.2022 of C.J.M. concerned has been received stating

therein that notice has been served on the first informant.

The perusal of the said report shows that notice has been served

personally on the first informant.

No one appears on behalf of the first informant even when the

matter has been taken up in the revised list.

Heard Sri Syed Ahmed Faizan, learned counsel for the applicant

and Sri Ankit Srivastava, learned consel for the State and

perused the record.

The anticipatory bail application under Section 438 Cr.P.C. has

been filed by the applicant Khurshid, seeking anticipatory bail,

in the event of arrest in Case Crime No. 0496 of 2021, under

Sections 498-A, 323, 504, 506, 354 IPC and Section 3/4 D.P.

Act and Section 3/4 of the Muslim Woman (Protection of

Rights on Marriage) Act, Police Station Naugawan Sadat,

District Amroha during the pendency of investigation.

Learned counsel for the applicant argued that the applicant has

been falsely implicated in the present case. It is argued that

general and omnibus allegations have been levelled against the

applicant and other co-accused persons. It is argued that the

present dispute is a matrimonial dispute. It is argued that there

is no independent witness to the said incident. Para 21 of the

affidavit has been placed before the Court. The applicant has no

criminal history as stated in para 6 of the affidavit in support of

anticipatory bail application.

Per contra, learned counsel for the State opposed the prayer for

anticipatory bail and argued that the investigation in the matter

is still going on. A prima facie case is made out. Referring to

the provisions of Section 41 and 41-A Cr.P.C. it is submitted

that since offences levelled in the First Information Report are

punishable up to seven years only the applicant cannot be

arrested. An apprehension of arrest shown in the anticipatory

bail is not genuine. Thus prayer has been made for rejection of

anticipatory bail.

I have considered the rival submissions raised by learned

counsel for the parties.

In the matter, it is evident from the record that anticipatory bail

has been moved for the offences in which the maximum

punishment is seven years. There is a specific provision under

Section 41 and 41-A Cr.P.C. on point of arrest of the accused

relating to the offences punishable up to seven years. Until and

unless the mandate given in Section 41 and 41-A Cr.P.C. is

complied by the Investigating Officer, accused of such offences

cannot be arrested.

Thus keeping in view of the statutory provisions on point of

arrest of the accused, the Court is of the opinion that there is no

need of anticipatory bail as the applicant cannot be arrested

without complying with the provision given in Section 41 and

41-A Cr.P.C. Specific provisions under Section 41 and 41-A

Cr.P.C. have been provided giving protection to the accused

persons for arrest of offences punishable up to seven years

punishment. Thus, prayer made in the present application is

refused.

With the above observations, the present application stands

disposed of.

Order Date :- 6.5.2022

M. ARIF/e-court

(Samit Gopal, J.)

Digitally signed by MOHAMMAD

ARIF

Date: 2022.05.06 17:52:18 IST

Reason:

Location: High Court of Judicature at

Allahabad