Sarvesh Kumar vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 13323 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 870 of 2023
 

 
Applicant :- Sarvesh Kumar
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt., Lko. And Another
 
Counsel for Applicant :- Sumit Kumar Srivastava
 
Counsel for Opposite Party :- G.A., Shiv Sharan Lal Maurya
 

 
Hon'ble Karunesh Singh Pawar,J.

1. The applicant has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in Case Crime No. 0402-A/2006 under Sections 147, 452, 323, 504 & 326 I.P.C, Police Station- Atrauli, District- Hardoi

2. Heard learned counsel for the applicant, learned counsel for the complainant Shri Shiv Sharan Lal Maurya, who has filed vakalatnama today in court which is taken on record, and learned A.G.A. for the State, who has filed counter affidavit, which too is taken on record.

3. Vide order dated 12.4.2023, the applicant was granted interim protection by a coordinate Bench of this Court. Gist of the issue involved in the present matter is given in the said order, which is extracted below :

"Heard Shri Sumit Kumar Srivastava, learned counsel for the applicant 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- Sarvesh Kumar in Case Crime No. 0402-A/2006 under Sections 147, 452, 323, 504 & 326 I.P.C, Police Station- Atrauli, District- Hardoi, 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 bail application submits that it is a case of false implication. In the first information report, allegations have been levelled of assaulting the victim as well as pouring 'acid' and also of injuring her eyes with a pointed weapon (suja), but during the course of investigation, all these allegations were found untruth and if 'Closure Report' (Final Report) was submitted, but the Magistrate concerned by passing order dated 04.04.2009 rejected the same and has summoned the applicant and other co-accused persons for committing offence under Sections 147, 452, 323, 504, 326 I.P.C.

It is vehemently submitted that no injury report is available pertaining to any injury caused to the victim or informant or to any other person from the side of informant and it was only on this basis, the Final Report was submitted and the Magistrate without dwelling into this factual aspect has summoned the applicant and the applicant was bonafidely litigating before the appropriate forum by filing U/S 482/378/407 No.1 of 2010 and vide order dated 05.01.2010, he was also granted protection. However, due to some reasons, learned counsel for the applicant engaged in the High Court could not appear before the Bench and it was on 23.01.2019, petition U/S 482/378/407 No.1 of 2010 was dismissed for want of prosecution and the interim order was also vacated. A recall application was immediately filed by the applicant, however, the same was also dismissed on 25.07.2022. Thereafter, the applicant had approached the Sessions Court for the purpose of anticipatory bail and the same has been rejected only on the ground that the alleged offence against the applicant is grave. The applicant is not having any criminal history. He will cooperate in the trial as he has cooperated in the investigation and will remain present before the trial court as and when his presence would be required.

Learned A.G.A., on the other hand, submits that applicant is accused of committing an heinous offence, but could not controvert the factual submissions made on behalf of the applicant pertaining to the fact that there is no injury report of any person or of the victim pertaining to sustaining of any kind of injury in the incident.

The submission of learned counsel for the applicant pertaining to the fact that in the incident neither informant nor any other person of the informant had sustained injury had not been disputed by learned A.G.A.

The offence under Section 326 I.P.C. is based on the nature of injuries and this provision could only be invoked, when the injury of the kind mentioned in this Section has been sustained. Thus, I find force in submissions made on behalf of the applicant sufficient enough to exercise my discretion in favour of the applicant.

Issue notice to the opposite party No.2 returnable till the next date of listing.

Steps in this regard be taken by learned counsel for the applicant within three working days from today.

List this case on 28.04.2023.

It is provided that till the next date of listing, the applicant- Sarvesh Kumar involved in the above noted case, in the event of his arrest under any process of the Court or on his presence before the trial court within 15 days from today i.e., till 28.04.2023, he shall be released immediately/forthwith on anticipatory bail on his furnishing a personal bond of Rs. 30,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the Police Station concerned/ Investigating Officer with the following conditions:

(1) The applicant shall not leave India during the pendency of trial without prior permission from the concerned trial court.

(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 discovery 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 when the witnesses are present in court. In case of default of any of above conditions, 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 applicant.

(5) In case, the applicant misuse the liberty of bail, the trial court concerned may take appropriate action in accordance with law.

(6) 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 statements 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 shall proceed against him in accordance with law.

Observations made herein-above by this Court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case.

List as directed on 28.04.2023 on which date, this application shall be decided finally.

In the meantime, counter affidavit may be filed by learned A.G.A. as well as by learned counsel for the informant. "

4. It is submitted on behalf of the applicant that it is a clear case of false implication. The injured in this case is accused in case crime No.402 of 2006 under sections 302, 201 I.P.C.. In order to exert pressure on the villagers, the applicant and others have been falsely implicated in the first information report.

It is further submitted that the trial court while summoning the applicant on the protest petition filed by the complainant has not given any finding as to whether there is any injury report. Likewise, Sessions court also overlooked the argument advanced by learned counsel for the applicant that it is a case of no injury and the applicant has been falsely implicated. No finding has been given regarding injury sustained by the injured. Admittedly, it is a case of no injury.

He further submits that the applicant has cooperated in the investigation. Charge sheet has been filed. He undertakes on behalf of the applicant that the applicant shall cooperate in the trial.

5. The learned A.G.A. and learned counsel for the complainant could not show that any injury has been sustained by the injured in this case, however, they opposed the prayer made by applicant's counsel.

6. Without expressing any opinion on the merits of the case and considering the nature of accusation and the applicant having no criminal antecedents, the undertaking given on behalf of the applicant that he shall cooperate in the trial and gravity of offence, I am of the opinion that in the event of arrest/surrender before the concerned court, the applicant is entitled to be enlarged on anticipatory bail in this case in the light of judgment of Supreme Court in Sushila Aggarwal and others vs. State (NCT of Delhi) and another (2020)5 SCC 1, subject to his cooperation in the trial.

7. In view of the above as also keeping in view of the judgment in Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC OnLine 98, the accused applicant is directed to surrender before trial court if he is summoned to face trial for offence in question after filing of the charge sheet. In the event of arrest/surrender before the concerned court, the accused applicant Sarvesh Kumar shall be enlarged on anticipatory bail by the trial court on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the trial Court, with the following conditions.

(i) 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 tamper with the evidence;

(ii) The applicant shall not leave India without the previous permission of the court;

(iii)The applicant shall not pressurize/ intimidate the prosecution witness;

(iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

In view of the aforesaid, the anticipatory bail application is allowed.

Order Date :- 28.4.2023

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