Shivkesh Dixit vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 11441 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 493 of 2023
 
Applicant :- Shivkesh Dixit
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home And Another
 
Counsel for Applicant :- Awnish Kumar,Nishant Kumar Shukla
 
Counsel for Opposite Party :- G.A.,Ram Bali Tiwari,Ram Bali Tewari
 

 
Hon'ble Rajeev Singh,J.

Counter affidavit filed by learned counsel for the complainant is taken on record.

Heard learned counsel for the applicant, learned counsel for the complainant as well as learned A.G.A. for the State of U.P. and perused the record.

The present bail application has been filed on behalf of the applicant in Case Crime No.236 of 2022 under Sections 307/34 I.P.C., Police Station Aasiwan, District Unnao, with the prayer to enlarge him on bail.

Learned counsel for the applicant submitted that the applicant is an innocent person and has been falsely implicated in the present case by the Police with the association of one Kamlesh who is the owner of a liquor shop situated near the temple only with the intention to create pressure on the priest of the temple. He further submitted that as per the informant, his thumb impression/signature was taken by the Police on a blank page, and thereafter, alleged complaint was prepared and without recording the statement of the witnesses as mentioned in the case diary, the charge sheet was prepared. He further submitted that charge sheet has already been filed and on 15.03.2023, interim anticipatory bail application was granted to the applicant and the order dated 15.03.2023 is as under:

"Personal affidavit of the applicant- Shivkesh Dixit filed in support of Anticipatory Bail Application is taken on record.

Shri Ram Bali Tiwari appeared and filed Vakalatnama on behalf of the complainant and the same is taken on record.

He further submits that the story as cooked up by the prosecution is not correct. As his signature on the blank paper was obtained by the concerned police personnel who had arrived at the spot and after knowing the FIR has been lodged by stating false and concocted story, he immediately moved an application before the Superintendent of Police concerned stating the correct state of affairs and in fact the incident as narrated in the First Information Report has not happened and he is not having any objection if the applicant is granted facility of anticipatory bail.

Heard learned counsel for the applicant and Shri Ram Bali Tiwari, learned counsel for the complainant as well as learned A.G.A. for the State and perused the record.

The present anticipatory bail application has been moved by the accused/applicant- Shivkesh Dixit in Case Crime No. 0236/2022, under Section 307/34 IPC, Police Station Aasiwan, District Unnao, with the prayer to enlarge him on anticipatory bail as he is apprehending arrest in the above-mentioned case.

Learned counsel for the accused-applicant while pressing the anticipatory bail application submits that the applicant has been falsely implicated in this case. The story as shown in the First Information Report is highly improbable and could not be believed on the touch stone of probability. The informant/ injured has not sustained any injury and even if the case of the prosecution, as is evident from the First Information Report is believed on its face the same may not attract the ingredients of Section 307 IPC.

It is further submitted that whole case has been cooked up by the local police and the contents of the FIR were also denied by the informant by moving application before the Superintendent of Police concerned, but the Investigating Officer did not pay any heed to the correct story unfolded by the informant and has submitted the charge sheet. The applicant is a reputed citizen of locality and charge sheet has already been filed which would not only jeopardize his personal liberty but would also bring a bad name to his otherwise good reputation. He undertakes that he will present before the court below as and when his presence would be required.

Learned AGA on the other hand submits that since the charge sheet in the matter has been filed and cognizance appears to have also been taken the applicant may challenge the summoning order by filing application under Section 482 Cr.P.C. and at present he is not having any apprehension of being arrested.

Learned AGA also opposes the prayer of anticipatory bail of the applicant on the ground that the applicant was initially arrested, however,having regard to his medical condition he was released on bail by the concerned S.H.O.

Be that as it may having regard to the fact that the informant is represented by Shri Ram Bali Tiwari, who has put his appearance today and has specifically stated that the FIR has not been lodged by him as the signatures of the informant had been taken on blank paper, the matter in the considered opinion of this Court requires consideration.

It is emphasized that filing of the charge sheet in any way will not jeopardize the jurisdiction conferred by the Code of Crl. procedure under Section 438 Cr.P.C. This has been specially dealt with by Hon'ble Supreme Court in the constitutional Bench judgment passed in the case of Sushila Aggarwal v. State (NCT of Delhi) (2020)5 SCC 1.

Thus, list this case on 10.4.2023.

Learned counsel for the complainant/ informant as well as learned AGA may file objection/ response/ counter affidavit to the prayer of the applicant.

It is provided that till the next date of listing in the event of arrest of the applicant- Shivkesh Dixit involved in the above noted case or on his surrender before the trial court within 15 days from today i.e. before 31.03.2023, whichever is earlier, he shall be released forthwith on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the trial court, Station House Officer of the Police Station concerned/ Investigating Officer subject to the following conditions:

1. The applicant if not arrested earlier, shall surrender before the trial court within 15 days from today i.e. on or before 31.3.2023 and will cooperate in the trial.

2. The applicant shall Cooperate in the investigation and will make himself available as and when required by the Investigating officer of the case, even for the recovery of any fact.

3. The applicant shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during his release on anticipatory bail.

4. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and specially when the prosecution witnesses are present in court.

5. 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 any of the condition placed above 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 shall proceed against him in accordance with law.

It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the trial proceedings in any manner.

List as directed on 10.4.2023, on which date, this application shall be decided finally."

Learned counsel for the complainant does not dispute this fact that neither the informant moved any application nor his statement was recorded by the Investigating Officer, therefore, he has no objection in case, the application is disposed of and anticipatory bail application of the applicant is allowed.

Considering the argument of learned counsel for the parties and going through the contents of the FIR as well as other relevant documents, I am of the view that the applicant is entitled for anticipatory bail.

Thus having regard to all the facts and circumstances of the case, the instant anticipatory bail application is finally disposed of in terms of order dated 15.03.2023. In case, applicant- Shivkesh Dixit, involved in aforesaid case crime number is taken into custody, he shall be released on anticipatory bail by the concerned Station House Officer on his furnishing personal bond of Rs.50,000/- with two sureties each in the like amount with the following conditions:-

(i) The applicant shall not commit or participate in any offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

(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 file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.

(v) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC.

(vi) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Order Date :- 18.4.2023

V. Sinha