Allahabad High Court
Avnish Kumar @ Neeraj vs State Of U.P. on 7 July, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 68
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9144 of 2021
Applicant :- Avnish Kumar @ Neeraj
Opposite Party :- State of U.P.
Counsel for Applicant :- Vinay Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
This Court is convened through video conferencing.
Heard Sri Vinay Kumar, learned counsel for the applicant and learned A.G.A. for the State.
The present anticipatory bail application has been filed to grant anticipatory bail to applicant in Case Crime No.238 of 2020 under Sections 307, 323, 504, 506 IPC, Police Station Naseerpur, District Firozabad.
In the FIR it is alleged that applicant and co-accused have abused, assaulted and manhandled the father of the first informant and a shot was also fired by gun which got missed.
Learned counsel for the applicant has submitted that applicant is falsely implicated in the present case. He further submitted that no such incident ever took place, even first informant and villagers have signed affidavit denying any such incident. Co-accused Ashish has been granted anticipatory bail till filing of charge-sheet vide order dated 18.5.2021, passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.9264 of 2021, whereas the anticipatory bail of the other co-accused Bhupendra was rejected, however he was protected for 60 days vide order dated 5.3.2021, passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.6174 of 2021. Applicant has criminal history of two cases wherein he has enlarged on bail.
Learned A.G.A. opposed the prayer for anticipatory bail and submitted that the presence of the applicant was visible in the video footage of the place of incident, wherein use of fire arm was also visible. Therefore, no case of anticipatory bail is made out.
It is settled law that impact of grant or refusal of application for anticipatory bail, directly relates to right of life and liberty of a person. Few factors and parameters, mentioned in Section 438(1), which are essentially required to be kept under consideration while exercising discretion dealing such applications are nature and gravity of accusation, criminal antecedents, details of prior conviction if any, possibility of accused to flew from from justice and whether accusation are made only with the object of causing injury and humiliation to the accused. The Supreme Court in various judgments has elucidated other factors also such as impact of the grant of anticipatory bail, particularly in cases of high magnitude affecting a large number of people; Court must carefully evaluate the entire material against the accused to clearly comprehend the exact role of the accused, greater care and evaluation should be considered where accused is implicated with the help of Sections 34 and 149 IPC to find out any over implication and a balance has to be struck between two factors namely, no pre judice should be caused to the free, fair and complete investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused. See; (Gurubaksh Singh Sibbia vs. State of Punjab (1980) 2 SCC 565, Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors (2011) 1 SCC 694, Jai Prakash Singh vs. State of Bihar: (2012) 4 SCC 379, Dr. Naresh Kumar Mangla vs. Smt. Anita Agarwal and Ors. Etc. 2020 SCC Online SC 1031).
In the present case the presence of the applicant is visible at the place of occurrence in the recorded C.C.T.V. footage which is also mentioned in the order passed by Court below while rejecting the anticipatory bail application. The co-accused Ashish was granted anticipatory bail only on the ground of prevailing situation due to second surge in the case of COVID-19. In a recent order of Apex Court (Petition(s) for Special Leave to Appeal (Crl.) No(s).3856/2021 THE STATE OF UTTAR PRADESH & ANR. vs. PRATEEK JAIN & ANR.) granting bail only on the ground of COVID-19 pandemic is directed not to be considered as precedent. So far as the case of co-accused Bhupendra is concerned the learned co-ordinate Bench of this Court has rejected his anticipatory bail application, however protected him therein for 60 days.
It is to note here that the Supreme Court in Nathu Singh vs. The State of Uttar Pradesh; 2021 SCC Online 402 has considered the question whether the High Court, while dismissing the anticipatory bail applications, could have granted protection to applicant from arrest? And held that High Court does have power to pass such order, but such power can be exercised in exceptional circumstances only and not in an untrammeled manner and such order must be a reasoned one and necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the Investigating Authority.
There is prima facie complicity of the applicant in the present case, therefore there is no exceptional ground to exercise the discretionary jurisdiction of this Court for granting anticipatory bail. Even there are no exceptional circumstances to grant anticipatory bail while rejecting present application. Therefore, this application is rejected.
Order Date :- 7.7.2021
A.Dewal
