Allahabad High Court
Vimal Kumar Kesharwani vs State Of U.P. on 21 December, 2023
Author: Shekhar Kumar Yadav
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:242471
Court No. - 71
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 14307 of 2023
Applicant :- Vimal Kumar Kesharwani
Opposite Party :- State of U.P.
Counsel for Applicant :- Yash Pratap Singh,Birendra Singh
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
1. Heard learned counsel for the applicant and learned Additional Government Advocate for the State.
2. This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.580 of 2022, under Sections 354-B, 452, 323, 504, 506 I.P.C., P.S.- Dhoomanganj, District- Prayagraj.
3. As per FIR, there are five named and one unnamed accused person in the FIR and the allegationsagainst the applicant and other co-accused are that they entered into the house of the informant and started giving filthy abuses, assaulted the informant and outraged the modesty of his mother and made her naked. It is further alleged that they looted jewelry worth of Rs.3-4 lacs and also took 1.5/- lacs cash from the almira.
4. Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case. He submitted that earlier the applicant has approached this Court by way of a writ petition being Criminal Misc. Writ Petition No.18766 of 2022 and co-ordinate Bench of this Court vide order dated 6.12.2022 has granted interim protection to the applicant, thereafter, the said writ petition was dismissed for want prosecution and interim protection was stands vacate vide order dated 14.12.2023. Thereafter, the applicant moved anticipatory bail before the court below and the same was rejected vide its order dated 23.11.2023. He further submitted that it is a counterblast case and earlier, he has filed an FIR against the first informant and only for this reason, the present FIR has been lodged against the applicant. He further submitted that co-accused, namely, Anuj Gupta, has already been granted anticipatory bail by the co-ordinate Bench of this Court vide order dated 16.12.2023 passed in Criminal Misc. Anticipatory Bail Application No.13602 of 2023. The applicant has no previous criminal history. Learned counsel for the applicant further submits that applicant has apprehension of imminent arrest and in case, applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial.
5. Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
6. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to 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.
7. In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant- Vimal Kumar Kesharwani, involved in the aforesaid case crime be released on anticipatory bail on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
(i) The applicant shall co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation.
(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.
(iii) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
(iv) The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.
(v) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 applicant.
(vi) In case, the applicant misuses 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.
(vii) 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 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 his bail and proceed against his in accordance with law.
8. In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
9. With the aforesaid observations/ directions, the application stands allowed.
Order Date :- 21.12.2023
Krishna*
