Shubham Dwivedi vs State Of U.P.
2021 Latest Caselaw 5958 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 89
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10132 of 2021
 

 
Applicant :- Shubham Dwivedi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Premnendra Singh,Himanshu Pandey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Himanshu Pandey, learned counsel for applicant, who is available on video link and Mr. Indrapal Singh Rajpoot, learned A.G.A. assisted by Mr. P.K. Sahi, learned brief-holder for State.

This application for anticipatory bail has been filed by applicant- Shubham Dwivedi in connection with Case Crime No.0196 of 2020, under Sections 147, 148, 149, 353, 307 I.P.C. and Section 7 of Criminal Law (Amendment) Act, Police Station- Auraiya, District- Auraiya.

At the very outset, learned counsel for applicant contends that applicant had earlier approached this Court by means of Crl. Misc. Anticipatory Bail Application No.4545 of 2020, "Shubham Dwivedi Vs. State of U.P.", which was allowed vide order dated 31.07.2020. For ready reference same is reproduced herein under:-

"1. Heard Sri Himanshu Pandey, learned counsel for the applicant and learned AGA for the State.

2. This anticipatory bail application has been filed on behalf of the applicant Subham Dwivedi, seeking anticipatory bail in Case Crime No.- 196 of 2020, under Sections -147, 148, 149, 353, 307 IPC and Section 7 of Criminal Law Amendment Act, 1932, Police Station -Auraiya, District -Auraiya, during the pendency of trial.

3. At the outset, it is stated that co-accused Ram Chandra @ Bhaiyan has already been granted anticipatory bail in Crl. Misc. Anticipatory Bail Application No. 3800 of 2020, vide order dated 6.7.2020. Another accused Ravi Kumar Chaturvedi @ Animesh has been granted interim protection by this Court in Criminal Misc. Writ Petition No. 6257 of 2020, vide order dated 26.06.2020. Yet, another co-accused Hari Govind @ Guddu has been granted regular bail in Criminal Misc. Bail Application No. 15658 of 2020, vide order dated 19.06.2020. It is further stated that the applicant has no criminal history.

4. In view of the above, no useful purpose would be served in keeping the present application pending or calling for counter affidavit from the State. Without expressing any opinion on the merits of the case, the applicant is entitled to be released on anticipatory bail, at this stage.

5. In the event of arrest of the applicant - Subham Dwivedi , involved in the aforesaid case crime, he shall be released on anticipatory bail during investigation, on his furnishing a personal bond of Rs. 50,000/- with two sureties of the like amount to the satisfaction of the Station House Officer of the police station concerned on the following conditions:

(i) The applicant shall make himself available for interrogation by a police officer as and when required.

(ii) The applicant 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 or tamper with the evidence.

(iii) The applicant shall not leave India without the previous permission of the court.

(iv) In default of any of the conditions mentioned above, the investigating officers shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

6. Present application is disposed of."

It is next contended that applicant is not named in the F.I.R. Name of applicant has surfaced in the third statement of complainant. Co-accused Ravi Kumar Chaturvedi @ Animesh, who is also situate in similar circumstances has already been extended benefit of anticipatory bail by this Court vide order dated 19.05.2021 passed in Crl. Misc. Anticipatory Bail Application No.9398 of 2021, "Ravi Kumar Chaturvedi @ Animesh Vs. State of U.P.". For ready reference, same is reproduced herein under:-

"As per Resolution dated 07.04.2021 of the Committee of this Court for the purpose of taking preventive and remedial measures and for combating the impending threat of Covid-19, this case is being heard by way of virtual mode.

Heard learned counsel for the applicant and Shri Amrit Raj Chaurasia, learned A.G.A for State through video conferencing.

The instant anticipatory bail application has been filed with a prayer to grant an anticipatory bail to the applicant, Ravi Kumar Chaturvedi @ Animesh, in Case Crime No. 0196 of 2020, under Sections 147, 148, 149, 353, 307 IPC and 7 Criminal Law Amendment Act, Police Station- Auraiya, District- Auraiya.

Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.

Charge sheet has already been submitted against the applicant. Without disclosing the full facts about the proceedings conducted after filing of charge sheet by the Investigating Officer in Court and what is the stage of proceedings before the Court below, this anticipatory bail application has been filed.

Counsel for the applicant submit that there is grave apprehension to the life of the applicant, in case he is directed to surrender before Court below for the purpose of grant of regular bail, on account of the threat to his life posed by second wave of Corona Virus. Applicant may be protected till the wave subsides and the normalcy returns in society and Courts both. The applicant cannot get any document from the Court below at present on account of closure and irregular functioning of court below and the applicant would get arrested if the matter is postponed to future date.

Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.

Keeping in view the judgment of this Court in Criminal Misc. Anticipatory Bail Application No. 4002 of 2021, Prateek Jain vs. State of U.P., dated 10.05.2021 this application is being disposed of.

In case of his arrest, the applicant shall be enlarged on anticipatory bail for a period of four months from today on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court with the following conditions:-

1. The applicant shall, at the time of execution of the bond, furnish their address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.

2. The applicant shall not leave the country during the currency of trial/investigation by police without prior permission from the concerned trial Court.

3. The applicant shall not obstruct or hamper the police investigation and not play mischief with the evidence collected or yet to be collected by the Investigating Officer of the police;

4. The applicant shall surrenders his passport, if any, to the concerned Court/Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passports, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.

5. That the applicant 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 them from disclosing such facts to the Court or to any police officer;

6. The applicant shall maintain law and order.

7. The applicant shall file an undertaking to the effect that he shall not seek any adjournment before the trial court on the dates fixed for evidence and when the witness is present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.

8. In case, the applicant misuse the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and the Government Advocate/informant/complainant can file bail cancellation application.

9. The applicant 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 in accordance with law.

10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

11. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

12. The applicant is warned not to get himself implicated in any crime and should keep distance from the informant and not to misuse the liberty granted hereby. Any misuse of liberty granted by this Court would be viewed seriously against the applicant in further proceedings.

This anticipatory bail application is being allowed on account of special conditions and on special ground. The normal grounds, settled for the grant of anticipatory bail, have not been considered by this Court and it would be open for the applicant to approach this Court again, if so adviced, in changed circumstances.

The anticipatory bail application is allowed."

On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to that of co-accused Ravi Kumar Chaturvedi. As such applicant is also liable to be extended the same benefit on the ground of parity.

Per contra, learned A.G.A. has opposed the application for anticipatory bail. However, he could not dispute the factual and legal submissions urged by learned counsel for applicant.

Having heard learned counsel for the parties and upon perusal of material brought on record, the complicity of accused and acquisition made, matter requires consideration.

Learned A.G.A. prays for and is granted four weeks' time to file counter affidavit. Applicant will have two weeks thereafter to file rejoinder affidavit.

Till the next date of listing, applicant shall not be arrested in connection with Case Crime No.0196 of 2020, under Sections 147, 148, 149, 353, 307 I.P.C. and Section 7 of Criminal Law (Amendment) Act, Police Station- Auraiya, District- Auraiya. However, he shall co-operate with the investigation.

Order Date :- 1.6.2021

Saif