# Akhlakh Ahmad v. State of U.P. Opp.Party

- **Citation:** (2023) 3 ILRA 808
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-11
- **Case number:** Crl. Misc. Anticipatory Bail Application No. 10800 of 2022
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhlakh-ahmad-v-state-of-u-p-opp-party-49222
- **Pages:** 7

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 41A & 438 -
Anticipatory Bail - Indian Penal Code,
1860 - Sections 365, 342 & 420 - Uttar
Pradesh
Prohibition
of
Unlawful
Conversion of Religion Act 2021 - Section
3, 5(1) - no person shall convert, either
directly or otherwise, any other person
from one religion to another by use or
practice
of
misrepresentation,
force,
undue influence, coercion, allurement or
by any fraudulent means - No person
shall abet, convince or conspire such
conversion - Pre-arrest bail is to strike a
balance between the individual's right to
personal freedom and the right of the
investigating agency to interrogate the
accused as to the material so far collected
and to collect more information which
may
lead
to
recovery
of
relevant
information. (Para - 12)

Complainant was promised employment by coaccused - taken to a Madarssa and a mosque -
pressure was exerted upon him to convert his
religion - managed to escape - Allegations made
in FIR - applicant involved in forcing people to
convert their religion.(Para - 8,12 )

HELD:-Prima Facie, offence made out against
applicant. Other co-accused persons already
granted regular bail. Grant of anticipatory bail
may hamper the custodial interrogation and will
lead to nondisclosure of useful information and
material facts and information. No case for
exercising its discretionary power under section
438 Code of Criminal Procedure made out in
favour of applicant. (Para - 12,13)

Anticipatory bail application rejected. (E-7)

List of Cases cited:-

## Text

808 INDIAN LAW REPORTS ALLAHABAD SERIES
propounded
by
the
Apex
Court.
Consequently, the application U/s 438
CrPC is hereby rejected.
----------
(2023) 3 ILRA 808
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.10.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Crl. Misc. Anticipatory Bail Application No. 10800
of 2022
(U/s 438 Cr.P.C.)

Akhlakh Ahmad ...Applicant
Versus
State of U.P. ...Opp.Party

Counsel for the Applicant:
Sri Tawvab Ahmed Khan

Counsel for the Opp.Party:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Sections 41A & 438 -
Anticipatory Bail - Indian Penal Code,
1860 - Sections 365, 342 & 420 - Uttar
Pradesh
Prohibition
of
Unlawful
Conversion of Religion Act 2021 - Section
3, 5(1) - no person shall convert, either
directly or otherwise, any other person
from one religion to another by use or
practice
of
misrepresentation,
force,
undue influence, coercion, allurement or
by any fraudulent means - No person
shall abet, convince or conspire such
conversion - Pre-arrest bail is to strike a
balance between the individual's right to
personal freedom and the right of the
investigating agency to interrogate the
accused as to the material so far collected
and to collect more information which
may
lead
to
recovery
of
relevant
information. (Para - 12)

Complainant was promised employment by coaccused - taken to a Madarssa and a mosque -
pressure was exerted upon him to convert his
religion - managed to escape - Allegations made
in FIR - applicant involved in forcing people to
convert their religion.(Para - 8,12 )

HELD:-Prima Facie, offence made out against
applicant. Other co-accused persons already
granted regular bail. Grant of anticipatory bail
may hamper the custodial interrogation and will
lead to nondisclosure of useful information and
material facts and information. No case for
exercising its discretionary power under section
438 Code of Criminal Procedure made out in
favour of applicant. (Para - 12,13)

Anticipatory bail application rejected. (E-7)

List of Cases cited:-

1.
P.
Chidambaram
Vs
Directorate
of
Enforcement, (2019) 9 SCC 24

2. Sadhna Chaudhary Vs St. of Raj. & anr., 2022
(237) AIC 205 (SC)

3. Sushila Aggarwal & ors. Vs St. (NCT of Delhi)
& anr., (2020) 5 SCC Page 1 (106)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. Heard Mr. Tawvab Ahmed Khan,
learned counsel for the applicant, Mr. K.P.
Pathak, learned A.G.A. for the State and
perused the record.

2. The present application has been
moved seeking anticipatory bail in Case
Crime No. 408 of 2022, under Sections
365, 342, 420 IPC and Section 3, 5(1) of
Uttar Pradesh Prohibition of Unlawful
Conversion of Religion Act 2021, P.S.-
Kotwali,
District-Fatehpur,
with
the
prayer that in the event of arrest, applicant
may be released on bail.

3. As per contents of first information
report, the complainant has alleged that he
was promised employment by co-accused
3 All. Akhlakh Ahmad Vs. State of U.P.
809
Arman Ali whereafter he was taken to a
Madarssa and a mosque and pressure was
exerted upon him to convert his religion but
some how he managed to escape.

4. Learned counsel for the applicant
submits that the applicant is innocent and
he has an apprehension that he may be
arrested in the above-mentioned case,
whereas there is no credible evidence
against him. He further submits that the
applicant has been falsely implicated in the
present case due to ulterior motive. The
applicant has franchisee of M/s Glaze
Trading India Pvt. Ltd. and one of the agent
of the company, i.e. Arman Ali was
entrusted the work of increasing the
number of agents for which Arman Ali
informed that he has deposited an amount
of Rs.10,000/- for fooding and lodging to
one Irshad and another agent, however, as
they never wanted to continue as agent of
the aforesaid company and demanded the
money back, when the same was not
returned, a false and frivolous case has
been made out against the applicant
including the other accused persons. He
further submits that the applicant has
criminal history of two cases, which has
satisfactorily been explained in para 19 of
the affidavit in support of bail application.
The applicant undertakes to co-operate
during investigation and trial and he would
appear as and when required by the
investigating agency or Court. It has been
stated that in case, the applicant is granted
anticipatory bail, he shall not misuse the
liberty of bail and will co-operate during
investigation and would obey all conditions
of bail.

5. Per contra, learned AGA opposed
the prayer for granted anticipatory bail to
the applicant by contending that the
applicant is named in the FIR. He further
submits that a notice under Section 41A of
Cr.P.C. was sent by the investigating officer
of the present case on 21.09.2022, but the
applicant failed to appear before the
Investigating Officer and as such had not
co-operated with the investigation. He
further submits that the case does not fall
under the category of section 438 Cr.P.C.
Therefore, the relief as prayed cannot be
granted.

6. Considering the submissions made
by learned counsel for the parties and
perused the record, this Court finds that
from the allegations made in the FIR, prima
facie offence is made out against the
applicant. Having regard to nature of
allegations and stage of investigation, held,
investigating
agency
must
be
given
sufficient
freedom
in
process
of
investigation.

7. Object of section 438 of the Code
of Criminal Procedure, is that a person
should not be unnecessarily harassed or
humiliated in order to satisfy personal
vendetta or grudge of complainant or any
other person operating the things directly or
from behind the curtains. It is well settled
that discretionary power conferred by the
legislature on this court can-not be put in a
straitjacket formula, but such discretionary
power either grant or refusal of anticipatory
bail has to be exercised carefully in
appropriate cases with circumspection on
the basis of the available material after
evaluating the facts of the particular case
and considering other relevant factors
(nature and gravity of accusation, role
attributed to accused, conduct of accused,
criminal antecedents, possibility of the
applicant
to
flee
from
Justice
,
apprehension of tampering of the witnesses
or threat to the complainant, impact of
grant of anticipatory bail in investigation,
810 INDIAN LAW REPORTS ALLAHABAD SERIES
trial or society, etc.) with meticulous
precision maintaining balance between the
conflicting interest, namely, sanctity of
individual liberty and interest of society.

8. Grant of anticipatory bail may
hamper the custodial interrogation and will
lead to nondisclosure of useful information
and material facts and information. In the
case of P. Chidambaram vs. Directorate of
Enforcement, reported in (2019) 9 SCC
24, the Apex Court held as under:-

"74. Ordinarily, arrest is a part of the
process of the investigation intended to
secure several purposes. There may be
circumstances in which the accused may
provide information leading to discovery
of material facts and relevant information.
Grant of anticipatory bail may hamper
theinvestigation. Pre-arrest bail is to strike
a balance between the individual's right to
personal freedom and the right of the
investigating agency to interrogate the
accused as to the material so far collected
and to collect more information which
may
lead
to
recovery
of
relevant
information. In State Rep.By The CBI v.
Anil Sharma(1997) 7 SCC 187, the
Supreme Court held as under:-

"6. We find force in the submission of
the CBI that custodial interrogation is
qualitatively more elicitation-oriented than
questioning
a
suspect
who
is
well
ensconced
with
a
favourable
order
underSection 438of the Code. In a case like
this effective interrogation of a suspected
person is of tremendous advantage in
disinterring many useful informations and
also materials which would have been
concealed. Success in such interrogation
would elude if the suspected person knows
that he is well protected and insulated by a
pre-arrest bail order during the time he is
interrogated. Very often interrogation in
such a condition would reduce to a mere
ritual. The argument that the custodial
interrogation is fraught with the danger of
the person being subjected to third-degree
methods need not be countenanced, for,
such an argument can be advanced by all
accused in all criminal cases. The Court
has to presume that responsible police
officers would conduct themselves in a
responsible
manner
and
that
those
entrusted with the task of disinterring
offences would not conduct themselves as
offenders."

81. Grant of anticipatory bail at the
stage of investigation may frustrate the
investigating agency in interrogating the
accused and in collecting the useful
information and also the materials which
might have been concealed. Success in
such interrogation would elude if the
accused knows that he is protected by
the order of the court. ........."

9. In another judgment of Apex Court
in case of Sadhna Chaudhary Vs. State of
Rajasthan & Anr., reported in 2022 (237)
AIC 205 (SC), the Apex Court had held as
under:-

"14. Law on the applicability or grant
of anticipatory bail under section 438
Cr.P.C. may be briefly summarised as
under:

14.1. In Shri Gurbaksh Singh Sibbia
and Others v. State of Punjab1, a
Constitution Bench of this Court, Chief
Justice Y.V. Chandrachud, speaking for the
Court dealt
with
in detail
on
the
considerations for grant of anticipatory
bail.

14.2.
In
Siddharam
Satlingappa
Mhetre vs. State of Maharashtra and
Others2; this Court relying upon the
Constitution Bench judgment in Shri
Gurbaksh Singh Sibbia laid down in
3 All. Akhlakh Ahmad Vs. State of U.P.
811
paragraph 112 of the report the following
factors and parameters to be considered
while dealing with an application for
anticipatory bail:

"(i) The nature and gravity of the
accusation and the exact role of the
accused must be properly comprehended
before arrest is made;

(ii) The antecedents of the applicant
including the fact as to whether the accused
has previously undergone imprisonment on
conviction by a court in respect of any
cognizable offence;

(iii) The possibility of the applicant to
flee from justice;

(iv) The possibility of the accused's
likelihood to repeat similar or other
offences;

(v) Where the accusations have been
made only with the object of injuring or
humiliating the applicant by arresting him
or her;

(vi) Impact of grant of anticipatory
bail
particularly
in
cases
of
large
magnitude affecting a very large number of
people;

(vii) The courts must evaluate the
entire available material against the
accused very carefully. The court must also
clearly comprehend the exact role of the
accused in the case. The cases in which the
accused is implicated with the help of
Sections 34 and 149 of the Penal Code,
1860 the court should consider with even
greater
care
and
caution
because
overimplication in the cases is a matter of
common knowledge and concern;

(viii) While considering the prayer for
grant of anticipatory bail, a balance has to
be struck between two factors, namely, no
prejudice should be caused to the free, fair
and full investigation and there should be
prevention of harassment, humiliation and
unjustified detention of the accused;

(ix) The court to consider reasonable
apprehension of tampering of the witnesses
or
apprehension
of
threat
to
the
complainant;

(x) Frivolity in prosecution should
always be considered and it is only the
element of genuineness that shall have to
be considered in the matter of grant of bail
and in the event of there being some doubt
as to the genuineness of the prosecution, in
the normal course of events, the accused is
entitled to an order of bail."

14.3.
In
yet
another
recent
Constitution Bench judgment in the case of
Sushila Aggarwal and Others vs. State
(NCT of Delhi) and Another3, in paragraph
85 of the report Justice Ravindra Bhatt laid
down the guiding principles in dealing with
applications under Section 438. Justice
M.R. Shah had authored a separate
opinion. Justice Arun Misra, Justice Indira
Banerjee and Justice Vineet Saran agreed
with both the opinions. The concluding
guiding factors stated in paragraphs 92,
92.1 to 92.9 are reproduced hereunder:

"92. This Court, in the light of the
above discussion in the two judgments, and
in the light of the answers to the reference,
hereby clarifies that the following need to
be kept in mind by courts, dealing with
applications under Section 438 CrPC.

92.1. Consistent with the judgment in
Shri Gurbaksh Singh Sibbia and others v.
State of Punjab4, when a person complains
of apprehension of arrest and approaches
for order, the application should be based
on concrete facts (and not vague or general
allegations) relatable to one or other
specific offence. The application seeking
anticipatory bail should contain bare
essential facts relating to the offence, and
why the applicant reasonably apprehends
arrest, as well as his side of the story.
These are essential for the court which
should consider his application, to evaluate
812 INDIAN LAW REPORTS ALLAHABAD SERIES
the threat or apprehension, its gravity or
seriousness and the appropriateness of any
condition that may have to be imposed. It is
not essential that an application should be
moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear
and
there
is
reasonable
basis
for
apprehending arrest.

92.2. It may be advisable for the court,
which is approached with an application
under Section 438, depending on the
seriousness of the threat (of arrest) to issue
notice to the public prosecutor and obtain
facts, even while granting limited interim
anticipatory bail.

92.3. Nothing in Section 438 Cr. PC,
compels or obliges courts to impose
conditions limiting relief in terms of time,
or upon filing of FIR, or recording of
statement of any witness, by the police,
during investigation or inquiry, etc. 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.

The courts would be justified - and
ought to impose conditions spelt out in
Section 437 (3), Cr.P.C. [by virtue of
Section 438 (2)]. The need to impose other
restrictive conditions, would have to be
judged on a casebycase basis, and
depending upon the materials produced by
the state or the investigating agency. Such
special or other restrictive conditions may
be imposed if the case or cases warrant,
but should not be imposed in a routine
manner, in all cases. Likewise, conditions
which limit the grant of anticipatory bail
may be granted, if they are required in the
facts of any case or cases; however, such
limiting conditions may not be invariably
imposed.

92.4. 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; equally whether and if so, what
kind of special conditions are to be imposed
(or not imposed) are dependent on facts of
the case, and subject to the discretion of the
court.

92.5. Anticipatory bail granted can,
depending on the conduct and behaviour of
the accused, continue after filing of the
chargesheet till end of trial.

92.6. An order of anticipatory bail
should not be "blanket" in the sense that it
should not enable the accused to commit
further offences and claim relief of
indefinite protection from arrest. It should
be confined to the offence or incident, for
which apprehension of arrest is sought, in
relation to a specific incident. It cannot
operate in respect of a future incident that
involves commission of an offence.

92.7. An order of anticipatory bail
does not in any manner limit or restrict the
rights
or
duties
of
the
police
or
investigating agency, to investigate into the
charges against the person who seeks and
is granted prearrest bail.

92.8. The observations in Sibbia
regarding "limited custody" or "deemed
custody" to facilitate the requirements of
the investigative authority, would be
sufficient for the purpose of fulfilling the
provisions of Section 27, in the event of
recovery of an article, or discovery of a
fact, which is relatable to a statement made
during such event (i.e deemed custody). In
such event, there is no question (or
necessity) of asking the accused to
3 All. Akhlakh Ahmad Vs. State of U.P.
813
separately surrender and seek regular bail.
Sibbia (supra) had observed that "if and
when the occasion arises, it may be
possible for the prosecution to claim the
benefit of Section 27 of the Evidence Act in
regard to a discovery of facts made in
pursuance of information supplied by a
person released on bail by invoking the
principle stated by this Court in State of
U.P. v Deoman Upadhyaya."

92.9. It is open to the police or the
investigating agency to move the court
concerned, which grants anticipatory bail,
for a direction under Section 439 (2) to
arrest the accused, in the event of violation
of any term, such as absconding, non
cooperating during investigation, evasion,
intimidation or inducement to witnesses
with a view to influence outcome of the
investigation or trial, etc."

10. In the case of Sushila Aggarwal
and others Vs. State (NCT OF Delhi) and
another (supra), the Hon'ble Supreme
Court has observed as under:-

"At this stage, it would be essential to
clear the air on the observations made in
some of the later cases about whether
Section 438 is an essential element of
Article 21. Some judgments, notably Ram
Kishna Balothia, (1995) 3 SCC 221 and Jai
Prakash Singh, (2012) 4 SCC 379 held that
the provision for anticipatory bail is not an
essential
ingredient
of
Article
21,
particularly in the context of imposition of
limitations on the discretion of the courts
while granting anticipatory bail, either
limiting the relief in point of time, or some
other restriction in respect of the nature of
the offence, or the happening of an event.
Such obsevations are contrary to the broad
terms of the power declared by the
Constitution Bench in Sibbia case. The
larger Bench had specifically held that an
"overgenerious infusion of constraints and
conditions which are not to be found in
Section 438 can make its provisions
constitutionally vulnerable since the right
to personal freedom cannot be made to
depend on compliance with unreasonable
restrictions.(Para 54)"

"The reason for enactment ofSection
438CrPC was parliamentary acceptance of
the crucial underpinning of personal liberty
in
a
free
and
democratic
country.
Parliament wished to foster respect for
personal liberty and accord primacy to a
fundamental
tenet
of
criminal
jurisprudence, that everyone is presumed to
be innocent till he or she is found guilty.
Life and liberty are the cherished attributes
of every individual. The urge for freedom is
natural to each human being. Section 438
is procedural provision concerned with the
personal liberty of each individual, who is
entitled to the benefit of the presumption of
innocence. As denial of bail amounts to
deprivation of personal liberty, the court
should lean against the imposition of
unnecessary restrictions on the scope of
Section 438, especially when not imposed
by the legislature. (Para 56)"

"Application for anticipatory bail:

Consistent with the judgment in
Gurbaksh Singh Sibbia, (1980) 2 SCC 565,
when a person complains of apprehension
of arrest and approaches for order, the
application should be based on concrete
facts
(and
not
vague
or
general
allegations) relatable to one or other
specific offence. The application seeking
anticipatory bail should contain bare
essential facts relating to the offence, and
why the applicant reasonably apprehends
arrest, as well as his side of the story.
These are essential for the corut which
should consider his application, to evaluate
the threat or apprehension, its gravity or
seriousness and the appropriateness of any
814 INDIAN LAW REPORTS ALLAHABAD SERIES
condition that may have to be imposed. It is
not essential that an application should be
moved only after an FIR is filed; it can be
moved earlier, so long as the facts are clear
and
there
is
reasonable
basis
for
apprehending arrest. (Paras 92.1 and
85.1)"

11. Whether to grant anticipatory bail or
not is a matter of discretion; equally whether
and if so, what kind of special conditions are
to be imposed (or not imposed) are dependent
on facts of the case, and subject to the
discretion of the Court. Further, anticipatory
bail would depend on the conduct and
behaviour of the accused, continue after filing
of the chargesheet till end of trial and order of
anticipatory bail does not in any matter limit
or restrict the rights or duties of the police or
investigating agency, to investigate into the
charges against the person who seeks and is
granted pre-arrest bail.

12. From perusal of the records, it
appears that the applicant is the named
accused and the allegation against the
applicant relates to Uttar Pradesh Prohibition
of Unlawful Conversion of Religion Act,
2021, which is a serious offence punishable
upto ten years imprisonment and fine of
Rs.50,000/-. The Act said that "no person shall
convert, either directly or otherwise, any other
person from one religion to another by use or
practice of misrepresentation, force, undue
influence, coercion, allurement or by any
fraudulent means. No person shall abet,
convince or conspire such conversion". From
the allegations made in the FIR, the applicant
is involved in forcing people to convert their
religion. Prima Facie, offence is made out
against the applicant. The other co-accused
persons, namely, Alim, Mohsin, Yaseen,
Yaseen Mansoori @ Gulam Yaseen Mansoori
and Arman Ali have already been granted
regular bail by the Co-ordinate Bench of this
Court.

13. In the light of above, looking to the
facts
and
circumstances of
this
case,
submissions of learned counsel for the parties,
taking into consideration the role assigned to
the applicant as per prosecution case, gravity
and nature of accusation as well as reasons
mentioned above, this Court is of the view that
no case for exercising its discretionary power
under section 438 Code of Criminal Procedure
is made out in favour of applicant.

14. Accordingly this application under
section 438 Cr.P.C. is rejected with liberty to
avail appropriate remedy as provided under
the law.

15. It is clarified that observations made
in this order at this stage is limited for the
purpose of determination of this anticipatory
bail application and will in no way be
construed as an expression on the merits of the
case. The investigating officer of this case shall
be absolutely free to arrive at its independent
conclusions according to law on the basis of
materials/evidences on record.
----------
(2023) 3 ILRA 814
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2023

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Crl. Misc. Anticipatory Bail Application No.
10958 of 2022
(U/s 438 Cr.P.C.)

Sohit Kumar & Ors. ...Applicant
Versus
State of U.P. & Anr. ...Opp.Parties