Nitin Kumar v. Saurabh Gupta and others, under Sections
Case Details
HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9657 of 2023 Saurabh Gupta State of U.P. and Another Versus .....Applicant(s) .....Opposite Party(s) Counsel for Applicant(s) : Atul Kumar Shahi, Jitendra Pal Singh Chauhan Counsel for Opposite Party(s): G.A., Gaurav Kakkar, Nitin Agarwal Court No. - 71 HON'BLE SANJAY KUMAR SINGH, J. 1. Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record. 2. By means of this present anticipatory bail application, applicant Saurabh Gupta, who is involved in Complaint Case No. 81 of 2023, Nitin Kumar Versus Saurabh Gupta and others, under Sections 323, 307, 504, 506 and 34 I.P.C., Police Station Kotwali City, District Bijnor, seeks enlargement on bail during the pendency of trial. 3. The applicant Saurabh Gupta is brother-in-law of the complainant, namely, Nitin Kumar.
Legal Reasoning
4. On 18.09.2023, following order was passed by co-ordinate Bench of this Court in Criminal Misc. Anticipatory Bail Application No. 9973 of 2023 filed by co-accused Lavish Gupta and Gaurav Gupta, which is quoted below:- "1. Heard Sri Atul Kumar Shahi, learned counsel for the applicants and Sri Gaurav Kakkar, learned counsel for the informant as well as Sri Pankaj Kumar, learned A.G.A. for the State. 2. The present anticipatory bail application has been filed on behalf of the applicants in Complaint Case No. 81 of 2023, under Sections 323, 307, 504, 506, 34 IPC, Police Station Kotwali City, District Bijnor, with a prayer to enlarge them on anticipatory bail. 2 ABAIL No. 9657 of 2023 3. As per prosecution story, the applicants are brothers-in-law of the complainant herein. There are several litigation going on between the parties since 2011 and in the present case, the applicants alongwith other co-accused persons, are stated to have assaulted the complainant on 24.12.2022 and even the applicant no. 2 is stated to have assaulted the complainant with a knife, thereby causing grievous injuries to him. The complaint was filed by the complainant on 3.1.2023. 4. Learned counsel for the applicants has stated that the applicants have been falsely implicated in the present case. The applicants were not named in the FIR. Learned counsel has next stated that the complaint case has been filed after a delay of ten days and there is no proper explanation of the said delay caused. It is next stated that the injury report is tainted one, as on an application moved by the applicants, an inquiry was set up by the Commissioner, Moradabad, and it was opined that the injury was simple in nature and was not dangerous to life. The injury report has been filed as Annexure-6 to the affidavit filed with the anticipatory bail application. It is also stated that the victims herein have been made accused. The matter was challenged before this Court by filing a petition u/s 482 Cr.P.C. and was sent for mediation, whereupon the mediation proceedings failed and subsequent to
Decision
it, the said petition was disposed of. 5. Several other submissions have been made on behalf of the applicants to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. Investigation is going on as the charge-sheet has yet not been filed in the matter. The applicants are cooperating in the investigation and are ready to do so in future. 6. On the other hand, learned counsel for the informant as well as learned A.G.A. have opposed the prayer for grant of anticipatory bail. Learned counsel for the informant has stated that there are fourteen injuries in all and the complainant had sustained grievous injuries to his chest. It is next stated that the applicant is not entitled for anticipatory bail in light of the judgement of this Court passed in Shivam Vs. State of U.P. and Another, reported in AIROnline 2021 All 484, whereby the applicant had relinquished the opportunity granted u/s 482 Cr.P.C. It is further stated that there are previous criminal history of the applicants and they had earlier on also assaulted the complainant and had caused injuries to him. The said injury report dated 24.8.2019 has not been annexed with the affidavit filed with the present application. 7. Matter requires consideration. 3 ABAIL No. 9657 of 2023 8. In the event of arrest, the accused-applicants- Lavish Gupta and Gaurav Gupta shall be released forthwith in the aforesaid case crime (supra) on interim anticipatory bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned on the following conditions:- (i) the applicants shall make themselves available for interrogation as and when required; (ii) 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; and (iii) the applicants shall not leave India without the previous permission of the Court. 9. As prayed, two weeks' time is granted to learned counsel for the informant to file counter affidavit. Learned AGA may also file counter affidavit within the said period. 10. Rejoinder affidavit, if any, may be filed within a week, thereafter. 11. List this application on 20.11.2023 in the additional cause list. 12. Till the next date of listing, no coercive action shall be taken against the applicants in the aforesaid case." 5. Thereafter, on 25.09.2023, following order was passed in this case : "1. Sri Atul Kumar Shahi, learned counsel for the applicant, Sri Gaurav Kakkar, learned counsel for the informant and Sri Anit Kumar Shukla, learned A.G.A. for the State are present. 2. Put up on 20.11.2023 in the additional cause list alongwith CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9973 of 2023. 3. Till the next date of listing, no coercive action shall be taken against the applicant with respect to Complaint Case No. 81 of 2023, under Sections 323, 307, 504, 506, 34 I.P.C., P.S.- Kotwali City, District- Bijnor." 6. The aforesaid anticipatory bail order dated 25.09.2023 was further extended vide orders dated 28.11.2023, 02.04.2024, 22.04.2024 and lastly on 23.05.2024. 7. The complainant/opposite party no.2 has filed counter affidavit 4 ABAIL No. 9657 of 2023 reiterating the prosecution case as mentioned in the complaint dated 03.01.2023. 8. Learned counsel for the complainant relying upon judgment of this Court in the case of Shivam Versus State of U.P. and another, reported in AIR Online 2021 All 484 submitted that since the application under Section 482 Cr.P.C. for quashing of complaint filed by the accused/applicant has been dismissed, therefore, this anticipatory bail application of the applicant is not maintainable and relief as sought for by means of present anticipatory bail application cannot be granted to the applicant. 8. In response, learned counsel for applicant relying upon judgment of Hon'ble Apex Court in the case of Kamlesh and another Versus The State of Rajasthan and Anr (arising out of SLP (Crl) No. 1530 of 2018) submitted that even after dismissal of the application under Section 482 Cr.P.C. of the applicant, the instant anticipatory bail application under Section 438 Cr.P.C. is maintainable. 9. Having heard learned counsel for the parties and examined the matter in its entirety, I find that the trial proceeding of the complaint case is not stayed by this Court, therefore, trial of the applicant is proceeding, in which he is participating. The applicant has been granted interim anticipatory bail vide order dated 25.09.2023 and there is no allegation against him that he has misused the liberty of anticipatory bail in any manner. 10. In view of aforesaid judgment of Hon'ble Apex Court in the case of Kamlesh and another (supra), this Court is also of the view that anticipatory bail application under Section 438 Cr. P.C. is fully maintainable. 11. Accordingly, the aforesaid interim anticipatory bail order dated 25.09.2023 is made absolute till conclusion of the trial, subject to following conditions : (i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court on each dates unless inevitable. (ii) That the applicant shall not directly or indirectly make any 5 ABAIL No. 9657 of 2023 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 tamper with the evidence. (iii) That the applicant shall not involve in any criminal activity. (iv) In case of breach of any of the conditions mentioned above, the concerned Court below will be at liberty to cancel the anticipatory bail of the applicant after recording reasons. 12. With the aforesaid observations and directions, the instant anticipatory bail application is allowed. 13. It is clarified that observations made in this order at this stage is limited to the purpose of determination of this anticipatory bail application only and will in no way be construed as an expression on the merits of the case. The concerned Court below shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials / evidences on record. October 13, 2025 T.S. (Sanjay Kumar Singh,J.) Digitally signed by :- TRIBHUWAN SINGH High Court of Judicature at Allahabad