Allahabad High Court
Brij Bhushan vs State Of U.P. Thru. Prin. Secy. ... on 10 April, 2023
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 741 of 2023
Applicant :- Brij Bhushan
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And Another
Counsel for Applicant :- Salik Ram Tiwari,Sanjeev Kumar Dwivedi
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Shri Ashish Kumar Singh, Advocate has filed his 'vakalatnama' on behalf of the complainant/informant, the same is taken on record. Along with 'vakalatnama' he has also submitted for perusal an order of the concerned Magistrate of date 27.07.2022, whereby the process of 82 Cr.P.C. has been issued against the applicant and other co-accused persons. A copy of the publication of the proclamation has also been produced along with 'vakalatnama', the same are taken on record.
Heard ShriSalik Ram Tiwari, learned counsel for the applicant, Shri Ashish Kumar Singh, learned counsel appearing for the complainant/informant as well as learned A.G.A. for the State and perused the record.
The instant application has been moved by the accused-applicant- Brij Bhushan, in F.I.R./Case Crime No. 157 of 2019, under Sections 147, 148, 149, 323, 325, 354Kha, 308, 307, 452 I.P.C. and Section 7/8 POCSO Act, Police Station Kohandaur, District Pratapgarh, with the prayer to enlarge him on anticipatory bail, as he is apprehending arrest in the above-mentioned case.
Learned counsel for the applicant while drawing the attention of this Court towards the F.I.R. as well as the statement of the two prosecution witnesses pertaining to whom the allegations of outraging of modesty have been alleged, submits that the instant case is nothing but the counter blast of a complaint case, which was filed by the applicant' side against the informant's side.
It is further submitted that injuries sustained by the injured persons are of the nature which may be self-inflicted and no incident of the nature described in the F.I.R. as well as in the statement of the prosecution witnesses including injured has taken place.
It is further submitted that though, the process of 82 Cr.P.C. has been issued illegally against the applicant, but having regard to the law laid down by the Hon'ble Supreme Court in various cases the facility of anticipatory bail may not be denied to an accused against whom the proclamation under Section 82 Cr.P.C. has been issued.
It is also submitted that keeping in view the statement of the two lady witnesses, the relevant provisions of the POCSO Act could not be attracted against the applicant. The other co-accused persons namely Shyam Bihari, Ranjeet Kumar Dubey @ Ranjeet Kumar and Shyam Sundari to whom the facility of anticipatory bail has been denied, vide order dated 24.01.2023 and 18.05.2022, passed in Criminal Misc. Anticipatory Bail Application Nos. 1877 of 2022, 104 of 2023 and 710 of 2022, respectively, the said orders are not on merits and the anticipatory bail application was not pressed and in this backdrop the co-ordinate Bench had directed the co-accused persons to appear before the trial court for the purpose of getting their bail application disposed of in accordance with law laid down by the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773.
It is vehemently submitted that applicant is not having any criminal history and he is ready to cooperate in the investigation and there is no apprehension that after being granted facility of anticipatory bail, he may flee from the course of law or otherwise misuse the liberty. Thus, protection from arrest may be granted to him.
Learned A.G.A. on the other hand submits that process of 82 Cr.P.C. has already been issued against the applicant and having regard to the law laid down by the Hon'ble Supreme Court in 'Prem Shankar Prasad vs. State of Bihar and Ors'; MANU/SC/0951/2021 and 'Lavesh vs. State (NCT of Delhi)'; MANU/SC/0701/2012 : (2012) 8 SCC 730, the instant anticipatory bail application is not maintainable.
Shri Ashish Kumar Singh, learned counsel appearing for the complainant/informant vehemently submits that it is an incident wherein 10 persons have sustained injuries as they have been brutally assaulted by the applicant and co-accused persons, moreover, it is not a case of counter blast, as a false complaint case has been lodged from the side of the applicant after lodging of the first information report from the side of the informant and having regard to the manner in which the ten persons have been brutally assaulted by the applicant's side and the applicant has played an active role therein, the applicant is not entitled for any discretion.
It is also submitted that against the rejection of the anticipatory plea of one of the co-accused namely Shyam Sundari has approached the Hon'ble Supreme Court by filing a Special Leave Petition (Criminal) No. 34445 of 2022 and the same has been disposed of by the Hon'ble Supreme Court without interfering in the judgment passed by a co-ordinate Bench of this Court and the facility of only extension of time of surrender has been granted to the co-accused Smt. Shyam Sundari.
Having heard learned counsel for the parties and having perused the record, it is evident that issuance of the process of 82 Cr.P.C. against the applicant and other co-accused persons has not been denied by learned counsel for the applicant. His contention is that, though the process of 82 Cr.P.C. has been issued but the issuance of the process of 82 Cr.P.C. may not preclude the applicant to approach this Court by moving an application under Section 438 Cr.P.C.. The submission made on behalf of the applicant is liable to be rejected out rightly. The incident is of the year 2019. The first information report of the incident appears to have been lodged promptly and since 2019 without any justifiable reasons the applicant has not surrendered before any competent Criminal Court and in this regard primafacie there appears no illegality so far as the issuance of proclamation under Section 82 Cr.P.C. is concerned.
Coming to the submission that even after issuance of proclamation under Section 82 Cr.P.C. the grant of anticipatory bail is not barred, I am not in agreement with the submissions made by learned counsel for the applicant. The facility of anticipatory bail is meant to be extended to the bonafide litigants against whom for any reason a false accusation has been apprehended and he is having substance with regard to the false implication and the facility of anticipatory bail may never be meant for an accused person (s), who is fleeing from the process of law.
Thus, having regard to the law law laid down by the Hon'ble Supreme Court in 'Prem Shankar Prasad (supra) and 'Lavesh vs. State (NCT of Delhi) (supra), the instant anticipatory bail application appears to be not maintainable, as nothing has been brought in the knowledge of this Court pertaining to the illegality or any irregularity committed by the Magistrate/Special Court, while issuing the process of 82 Cr.P.C. Even on merits 10 persons are shown to have been injured in the incident and as many as 42 injuries on multifarious nature including grievous in nature, have been sustained by ten injured persons. Two of such injured persons have also sustained fractures of their limbs. Thus, having regard to the factual matrix also, the applicant doesn't appear to be entitled for anticipatory bail, as he is shown to have actively participated in the incident.
Thus the anticipatory bail application moved on behalf of the applicant- Brij Bhushan under Section 438 Cr.P.C is, hereby, rejected.
However, mere rejection of the instant anticipatory bail application of the applicant shall not preclude the applicant to immediately appear before the trial Court to say within one week from today for procurement of regular bail and if applicant appears/surrenders before the trial Court within the time stipulated above and moves regular bail application, the concerned Court/Special Court/Magistrate shall be under an obligation to dispose of the same, after providing an opportunity of being heard to the parties, strictly in accordance with law, with utmost expedition.
Order Date :- 10.4.2023
Praveen
