Allahabad High Court
Surendra Kumar vs State Of U.P. on 5 October, 2021
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 32
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11098 of 2021
Applicant :- Surendra Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Akash Dikshit,Dheeraj Awasthi
Counsel for Opposite Party :- G.A.
Hon'ble Manish Kumar,J.
Heard learned counsel for applicant and the learned A.G.A. and perused record.
The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending his arrest in connection with Case Crime No.130 of 2021, under Sections 323, 504, 307 I.P.C., Police Station - Asiwan, District - Unnao.
Learned counsel for the applicant has submitted that as alleged in the F.I.R. that the applicant alongwith other co-accused persons had assaulted the informant and his brother's family members, due to which they received injuries, but, except the inured, Sushil, no one has been medically examined.
It is further submitted that in the F.I.R., the specific role of inflicting injury by Phawda has been assigned to the co-accused, Prakash and for other co-accused persons including the present applicant, general role has been assigned.
It is further submitted that at the most, if any case is made out against the applicant, that may be the offence under sections 323 & 504 I.P.C. and not under section 507 I.P.C.
It is further submitted that in actual there were some hot talks going on between the co-accused, Prakash and the injured, Sushil. The co-accused, Prakash had assaulted the injured, Sushil and his medical report has been enclosed as Annexure No. 3 to the paper book.
It is further submitted that the applicant has no criminal history.
It is further submitted that the police is looking after the applicant for his arrest and he apprehends his arrest in the present case. It is further submitted that there is no chance of absconding or tampering of the applicant with the prosecution witnesses.
The applicant has falsely been implicated in the present case just to tarnish the image of applicant in the society.
It has further been submitted that the nature and gravity of the accusation and the exact role of the accused has not properly comprehended. It is further contended that the applicant has not previously undergone imprisonment on conviction by a Court in respect of any cognizable offence and there is no possibility of applicant to flee from the judicial proceedings.
On the other hand, learned A.G.A. has opposed the prayer for grant of anticipatory bail and on the basis of instructions received, states that as per the medical report, Sushil has received injuries by Phawda, but, unable to dispute that the role of inflicting injury by Phawda has been assigned to co-accused, Prakash in the F.I.R.
It is further submitted N.B.W. has been issued against the applicant.
In reply thereto, learned counsel for the applicant has submitted that the applicant has not been declared as "Proclaimed Offender" by any competent court under section 82 Cr.P.C. as per the Judgment of the Apex Court in the case of Lavesh Vs State (NCT of Delhi), reported in (2012) 8 SCC,730 (Para No. 10).
As per the judgment in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in MANU/SC/0949/2015, the Hon'ble Supreme Court has held that the nature and gravity of the accusation and the exact role of the accused must be properly comprehended, the previous criminal antecedents of the applicant whether he has previously undergone imprisonment on conviction, the possibility of applicant to flee and where the accusation has been made only with the object of injuring or humiliating the applicant by arresting him.
In the case of Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.
After considering the rival submissions of the respective parties and looking into the circumstances as well as annexures which have been annexed with the application for anticipatory bail, it is found that there is a case registered against the applicant and it cannot be definitely said when the police may apprehend the applicant. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. It is also found that nature and gravity of the accusation and the exact role of the accused has not been properly comprehended; the applicant has not previously undergone imprisonment on conviction by the Court; as undertaken by the learned counsel for the applicant that there is no possibility to flee from the judicial proceedings and in the light of judgment of Hon'ble the Supreme Court in cases of Joginder Kumar (supra) and Bhadresh Bipinbhai Sheth (Supra), this Court finds it a fit case to issue an interim order of anticipatory bail as per Section 438 (2) of the Cr.P.C.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, the applicant as an interim measure may be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
In the event of arrest, let the accused-applicant, Surendra Kumar be released forthwith in the aforesaid Case Crime Number on bail on furnishing a personal bond of Rs.25,000/- 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) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;
(ii). That the accused-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; and
(iii). That the accused-applicant shall not leave India without the previous permission of the Court.
The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173(2) Cr.P.C.
In case there is breach of any of the above conditions or in case it is otherwise found for any other reason the bail is required to be cancelled, it shall be open for the State or the appropriate authority to move application for cancellation of bail in accordance with law.
Learned A.G.A. prays for and is granted two weeks time to file counter affidavit in the matter.
List this case in the week commencing 25.10.2021.
Order Date :- 5.10.2021
AKS
