High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2723 of 2022 Applicant :- Danish Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ashok Kumar Singh,Pratibha Singh,Radhey Shyam Tripathi Counsel for Opposite Party :- G.A.,Anuj Kumar Gupta,Narendra Nath Tripathi Hon'ble Mohd. Faiz Alam Khan,J.
Legal Reasoning
Heard Shri Ashok Kumar Singh, learned counsel for the applicant, Shri Narendra Nath Tripathi, learned counsel representing the informant as well as learned A.G.A. for the State and perused the record. The instant application has been moved by the applicant- Danish, in Case Crime No. 307 of 2021, under Sections 147, 148, 149, 307 and 504 I.P.C., Police Station Asmauli, District Sambhal, with the prayer to enlarge him on anticipatory bail. Learned counsel for the applicant while pressing the anticipatory bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution. It is further submitted that the instant F.I.R. which has been lodged with considerable delay with the help of Section 156 (3) Cr.P.C. on 05.09.2021 by Zakir @ Munshi against the applicant and seven other accused persons is nothing but a counter blast of the earlier F.I.R. lodged by the instant applicant namely Danish on 16.04.2020 under Sections 302, 504 and 34 I.P.C. against Saleem, Titu and Anazil with regard to causing death of the father and uncle of the applicant. It is further submitted that in fact on 16.04.2020 the accused person Saleem, Teetu @ Shane Alam, (who are shown injured in this case) and one Anazil has caused the death of his father and uncle and in this connection the aforementioned first information report was lodged and to screen themselves and in order to put pressure on the applicant, who is an informant in that case, the instant F.I.R. has been lodged. It is further submitted that the allegations in the F.I.R. are highly improbable and could not be believed and there is no explanation as to why the application under Section 156 (3) Cr.P.C. is being presented with such delay. The applicant is not having any previous criminal history and there is every apprehension that without any cogent and reliable evidence the applicant may be arrested in the above-mentioned case and, therefore, protection from arrest in the above-mentioned case be provided to him. Shri Narendra Nath Tripathi, learned counsel for the informant on the other hand submits that this case is the cross version of the F.I.R. lodged by the instant applicant Danish and in the F.I.R. lodged by the applicant Danish, it is nowhere mentioned whether the informant's party of that case has exercised any right to defend either their property or person and that F.I.R. is silent, as to how the injuries have been sustained by the two injured persons of this case namely Teetu @ Shane Alam and Saleem. It is further submitted that injured Teetu @ Shane Alam was medically examined on 18.04.2020 and injured Saleem was medically examined on 16.04.2020 and injuries have been found on their person and the injuries sustained by the injured Saleem were also referred for X-ray and in X-ray a metallic density shadow has been noticed and as per the supplementary report dated 25.08.2021 of the Chief Medical Officer, Sambhal, it is opined that the injury no.1 and 2 sustained by the injured Saleem has been caused by firearm and is grievous in nature. It is vehemently submitted that even if the case of the prosecution is taken on its face, it appears to be a case of free fight where every party is responsible for his act as none of the party has claimed any right to defend their property or person and having regard to the injuries sustained by one of the injured namely Saleem, the applicant is not entitled for any protection. Learned A.G.A. also supported the submissions made by the the learned counsel for the applicant and submits that having regard to the heinousness of the offence, the applicant is not entitled for any protection. Having heard learned counsel for the parties and having perused the record, it is evident that with regard to the incident allegedly occurred on 16.04.2020 claims and counter claims in form of F.I.R.s have been made by the rival parties. While the applicant Danish has lodged an F.I.R. on 16.04.2020 claiming that the accused persons mentioned therein have caused the death of his father and uncle, the informant of the instant case F.I.R. namely Zakir @ Munshi by filing the instant first information report has come with a counter version of the incident wherein it is alleged that the instant applicant and other co-accused persons have fired guns shots from firearms and also assaulted the injured persons. The role of firing with a gun has been assigned to the instant applicant. One of the injured namely Saleem has sustained two firearm injuries, both these injuries are on vital parts of the body. Which party was aggressor or was having right to defend his person or property could only be ascertained in the trial. The grant of anticipatory bail pertaining to the heinous offences is to be dealt with by the Court by considering the case of the prosecution in totality and also with circumspection. of reported Hon'ble Supreme Court in the case of "P. Chidambaram vs. Directorate in Enforcement" MANU/SC/1209/2019 in following words; "67. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the Accused but several other purposes. Power Under Section 438 Code of Criminal Procedure is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of Applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of Rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 70. We are conscious of the fact that the legislative intent behind the introduction of Section 438 Code of Criminal Procedure is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights-safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the Appellant Under Article 21 of the Constitution of India. 72. 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 the investigation. 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 MANU/SC/0947/1997 : (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 Under Section 438 of 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 acondition 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." Having regard to the fact that the role of firing with a gun has been assigned to the instant applicant and two injuries of the gun shot have been sustained by the injured Saleem, I do not find any good ground to exercise discretion in favour of the instant applicant and, therefore, the anticipatory bail application moved by the applicant is, hereby, rejected. Observations made herein-above are only for the purpose of disposal of this anticipatory bail application and the same shall not to be construed as any opinion of this Court on merits and the subordinate court shall be free to arrive at its own conclusions. Order Date :- 11.4.2022 Praveen Digitally signed by PRAVEEN KUMAR Date: 2022.04.11 17:29:24 IST Reason: Location: High Court of Judicature at Allahabad