Allahabad High Court
Gyanendra Kumar Agrahari vs State Of U.P. & Anr. on 30 June, 2021
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6511 of 2021
Applicant :- Gyanendra Kumar Agrahari
Opposite Party :- State Of U.P. & Anr.
Counsel for Applicant :- Sanjay Tripathi,Ravindra Kumar Dwivedi
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Sri Sanjay Tripathi, learned counsel for the applicant and learned A.G.A. for the State through video conferencing due to COVID - 19 pandemic.
2. This is an application for grant of anticipatory bail to the accused-applicant in case crime No.1 of 2014, under Sections 409 and 120-B IPC, police station Gomti Nagar, District Lucknow.
3. It has been submitted by learned counsel for the applicant that criminal proceedings have been initiated with regard to construction of memorial and parks in Lucknow and Noida.
4. Learned A.G.A., at the very outset, raised a preliminary objection that the anticipatory bail application preferred by the applicant under Section 438 Cr.P.C., at the first instance, be preferred before the trial court and only then it should be filed before High Court while the applicant has approached High court directly and, therefore, the application deserves to be rejected but with liberty to the applicant to approach the competent court.
5. Sri Sanjay Tripathi, learned counsel for the applicant has submitted that the provisions of Section 438 Cr.P.C. as amended with regard to the State of Uttar Pradesh were duly considered by a Five Judge Full Bench of this Court in the case of Ankit Bharti Vs. State of U.P. in Crl. Misc. Anticipatory Bail Application No.1094 of 2020 where the Bench has held that if there are any exceptional circumstances or special circumstances only then application can be permitted to be filed directly in High Court failing which the application should be filed before the trial court.
6. Sri Sanjay Tripathi, learned counsel for the applicant in support of his submissions submits that there special circumstances in the present matter. He submits that the bail application of co-accused Siddhartha is pending before High Court and during pendency of bail application of the co-accused before High Court, the trial court is not likely to interfere in the matter and, therefore, submits that this is a special circumstance due to which instant anticipatory bail application deserves to be heard directly by the High Court.
7. I have heard learned counsel for the parties and perused the record.
8. Undoubtedly, while interpreting the provisions of Section 438 Cr.P.C. the Full Bench has relied upon the earlier orders of this Court in the case of Vinod Kumar Vs. State of U.P. and another, 2019 (12) ADJ 495and has also duly considered the recent judgment in the case of Sushila Aggarwal Vs. State of State (NCT of Delhi) and others and have held that it is only when there exists a special or extraordinary circumstance, High Court can entertain an application under Section 438 Cr.P.C. directly.
9. The contention of learned counsel for the applicant is that bail application of co-accused is pending in this Court. Mere pendency of an application of co-accused cannot be held to be such circumstance which can be either extraordinary or special so as to enable this Court to exercise its power under Section 438 Cr.P.C. Pendency of a bail application of a co-accused in no way can be said to create any restriction of power of trial court to exercise its power under Section 438 Cr.P.C. In absence of any extraordinary circumstance, the present bail application is rejected with liberty to the applicant to approach competent court for redressal of his grievance.
Order Date :- 30.6.2021
RKM.
