Kedar Pandey And 3 Others vs State Of U.P.
2022 Latest Caselaw 21360 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7584 of 2022
 

 
Applicant :- Kedar Pandey And 3 Others
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- D.M.Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

Earlier, the applicants were granted protection till 3.1.2022, vide order dated 13.5.2021 in CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 6982 of 2021 , which is quoted below:-

"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 applicants and 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 applicants, Kedar Pandey, Suresh Pandey, Ramesh Pandey, Prem Chandra Pandey and Amresh Pandey, in Case Crime No. 149 of 2019, under Sections- 323, 427, 504, 452 IPC, Police Station- Sarai Inayat, District- Prayagraj.

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

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 their arrest, the applicants shall be enlarged on anticipatory bail for a limited period, till 03.01.2022 on the following conditions:-

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

3. The applicants 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 applicants shall surrender their passports, if any, to the concerned Court/Investigating Officer forthwith. Their passports will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case they have no passports, they will file their affidavits before the Court/ Investigating Officer concerned in this regard.

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

6. The applicants shall maintain law and order.

7. The applicants shall file an undertaking to the effect that they shall not seek any adjournment before the trial court on the dates fixed for evidence and when the witnesses are 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 applicants.

8. In case, the applicants 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 applicants 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 their bail and proceed against them 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 applicants are warned not to get themselves 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 applicants 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 applicants to approach this Court again, if so advised, in changed circumstances.

The anticipatory bail application is allowed."

Heard learned counsel for the applicants and learned Additional Government Advocate for the State.

The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicants-Kedar Pandey, Suresh Pandey, Ramesh Pandey and Amresh Pandey, are apprehending their arrest in connection with Case Crime No. 149 of 2019, under Sections- 323, 427, 504, 452 IPC, Police Station- Sarai Inayat, District- Prayagraj.

Learned counsel for applicants has submitted that the applicants have been falsely implicated in this case and they have not committed any offence as alleged by the prosecution. Learned counsel for the applicant submitted that due to covid pandemic, protection was granted to the applicants for limited period. Apart from Section 452 I.P.C. all the offence are bailable. Further submission is that the applicants fully cooperated with the investigation and he never misused the liberty of the protection. Hence, the applicants may be enlarged on anticipatory bail till conclusion of trial and they are ready to cooperate with the trial. If the applicants are granted anticipatory bail, they will never misuse the same. In support of his submission, learned counsel for the applicants has relied upon the judgement of Hon'ble Apex Court in the case of Aman Preet Singh vs. C.B.I. through Director, AIR 2021 Supreme Court 4154.

Learned Additional Government Advocate has vehemently opposed the prayer for anticipatory bail to the applicants

I have considered the rival submissions advanced by learned counsel for the parties and perused the entire material available on record.

The Hon'ble Supreme Court in the case of Aman Preet Singh (Supra), the Court has observed as under:

"10. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

11. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

In Aman Preet Singh (supra), the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, I am of the opinion that it is a fit case for grant of bail to the applicants.

Accordingly, the anticipatory bail application is hereby allowed.

Let the applicants be released on bail by the trial Court till conclusion of trial on furnishing a personal bond and, two sureties each in the like amount to the satisfaction of the trial Court concerned with the following conditions:

(i) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are 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;

(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code. The applicants shall cooperate in the investigation;

(iii) In case, the applicants misuse the liberty of bail and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them in accordance with law, under Section 174-A of the Indian Penal Code; and

(iv) The applicants 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 their bail and proceed against them in accordance with law.

(v) The applicants shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

(vi) The computer generated copy of such order shall be self attested by the counsel of the party concerned.

(vii) 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.

Order Date :- 16.12.2022

Anuj Singh