High Court
Case Details
Court No. - 77 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7112 of 2020 Applicant :- Nisha And Another Opposite Party :- State of U.P. Counsel for Applicant :- Vipul Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Mrs. Manju Rani Chauhan,J.
Legal Reasoning
The case is taken in the revised call. Rejoinder affidavit filed by the learned counsel for the applicant today in the Court, is taken on record. Office is directed to register the same. Heard Mr. Vipul Kumar Singh, learned counsel for the applicant and Mr. K.P. Pathak, learned A.G.A. for the State and perused the record. The present application has been moved seeking anticipatory bail in Case Crime No.42 of 2020, under Sections 147, 148, 149, 332, 353, 504, 506, 336, 352, 307 I.P.C. and Section 7 of Criminal Law Amendment Act, Police Station-Kandhrapur, District-Azamgarh, with the prayer that in the event of arrest, applicant may be released on bail. Earlier on 03.11.2020, the following order was passed, granting interim anticipatory bail to the applicants:- "Heard Mr. Vipul Kumar Singh, learned counsel for applicants and learned A.G.A. for State. This application for anticipatory bail has been filed by applicants Nisha and Gayatri in connection with Case Crime No. 0042 of 2020, under Sections 147, 148, 149, 332, 353, 504, 506, 336, 352 & 307 I.P.C. and Section 7 Criminal Law Amendment Act, P.S. Kandhrapur, District Azamgarh. Perusal of record shows that in respect of an incident which is alleged to have occurred on 12.4.2020 a prompt FIR was lodged on 12.4.2020 by S.I. Ghanshyam. Yadav which was registered as Case Crime No.0042 of 2020, under Sections 147, 148, 149, 332, 353, 504, 506, 336, 352 & 307 I.P.C. and Section 7 Criminal Law Amendment Act, P.S. Kandhrapur, District Azamgarh In the aforesaid FIR 12 persons namely, Sanjvijay Nishad, Ramvijay Nishad, Rahul, Harpal, Mila, Seema, Shanti, Soni, Jyoti, Nisha, Mira and Gayatri have been nominated as named accused. Learned counsel for applicants contends that applicants are ladies. Applicants are innocent and they have been falsely implicated in above mentioned case crime number. He has then invited attention of Court to the provisions contained in proviso to Section 437 Cr.P.C., on the basis of which he contends that applicants are liable to be enlarged on bail. It is next submitted that all the accused persons have been falsely implicated on the ground of police rivalry. The present case is a case of no injury. It is then submitted that FIR was lodged on 12.4.2020 but in spite of the fact that a period of more than six months have rolled by from the date of lodging of FIR no police report in terms of Section 173 (2) Cr.P.C. has been submitted till date. The investigation is still going on and applicants are co-operating with investigation inasmuch as no coercive process has been issued against them. The police has not collected any such material upto this stage on the basis of which complicity of present applicants can be said to be established in above mentioned case crime number. He therefore, contends that custodial arrest of applicants is not absolutely necessary for investigating above mentioned case crime number. Applicants have no criminal history to their credit yet there is definite apprehension of their arrest by the police. He therefore contends that liberty of applicants be protected by extending the benefit of anticipatory bail in their favour. Per contra, learned A.G.A. has vehemently opposed the prayer for anticipatory bail. However, he could not dispute the facts as noted above as well as the factual and legal submissions urged by learned counsel for applicants. Having heard the learned counsel for applicants, learned A.G.A. for State, and upon perusal of record as well as complicity of accused, applicants have made out a case. Matter requires consideration. Notice on behalf of opposite party no.1 has been accepted by learned A.G.A. Learned A.G.A. prays for and is granted three weeks' time to file counter affidavit. Applicants will have two weeks' thereafter to file rejoinder affidavit. List after expiry of aforesaid period, before appropriate Bench. Till the next date of listing, no coercive action shall be taken against the applicants in above-mentioned case crime number. " Learned counsel for the applicant submits that applicants are innocent and have been falsely implicated in the present case and they have an apprehension that they may be arrested in the above mentioned case, whereas there is no credible evidence against them. He further submits that the charge sheet has been submitted in the present case on 12.04.2020 and the applicants have always co-operated in the investigation and have not misused the liberty as granted earlier order dated 03.11.2020 passed by the Co-ordinate bench of this Court. Learned counsel for the applicant has placed reliance upon the judgment of the Apex Court in the case of Dr. Rajesh Pratap Giri vs. State of U.P. and Ors. reported in MANU/SC/0305/2021 wherein the Apex Court has observed that liberty of a person participating in the investigation and not arrested during course of investigation, cannot be curtailed merely by submission of charge sheet. He further submits that the applicants are ladies. Several other submissions have been made on behalf of the applicants to demonstrate the falsity of the allegation made against them. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon length. Learned counsel for the applicant undertakes that they have co-operated in the investigation and are ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail. Learned A.G.A. has opposed the prayer for anticipatory bail but does not dispute the factual aspects of the matter. On due consideration to the arguments advanced by learned counsel for the applicant as well as learned A.G.A. and considering the nature of accusations and antecedents of the applicant, the applicant is entitled to be released on anticipatory bail in this case in view of the judgement of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi) reported in (2020) 5 SCC 1". The future contingencies regarding the anticipatory bail being granted to applicants shall also be taken care of as per the aforesaid judgement of the Apex Court. In view of above, the anticipatory bail application of the applicant is allowed. Let the applicants-Nisha and Gayatri involved in the aforesaid case crime be released on anticipatory bail till the conclusion of trial on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:- 1. The applicants shall not tamper with the evidence during the trial. 2. The applicants shall not pressurize/intimidate the prosecution witness. 3. The applicants shall appear before the trial Court on the date fixed, unless personal presence is exempted. 4. The applicants shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 5. That the applicants 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; 6. The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him/her/them in accordance with law. It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial. In case of breach of any of the above condition, the Court below shall be at liberty to cancel bail of applicants in accordance with law. Order Date :- 12.1.2023 Jitendra/- Digitally signed by :- Digitally signed by :- JITENDRA KUMAR YADAV JITENDRA KUMAR YADAV High Court of Judicature at Allahabad High Court of Judicature at Allahabad