Rajesh Kumar @ Lavkesh Sharma vs State Of U.P.
2023 Latest Caselaw 1269 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. - 12330 of 2021
 
Applicant :- Rajesh Kumar @ Lavkesh Sharma
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rishad Murtaza,Ghanshyam Yadav
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Karunesh Singh Pawar,J. 

Heard learned counsel for the applicant, learned Additional Government Advocate for the State and perused the record.

Vide order dated 27.01.2022, the applicant was granted interim protection by a Co-ordinate Bench of this Court. Gist of the issue involved in the present matter is given in the said order, which is extracted below:

"The Court convened through video conferencing.

Heard Ms. Aishwarya Mishra holding brief of Shri Rishad Murtaza, learned counsel for applicant and learned A.G.A. and perused record.

The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant is apprehending his arrest in connection with F.I.R./Case Crime No. 0195 of 2020, under Sections 188, 269, 147, 148, 149, 307, 332, 341, 353, 504, 506 I.P.C., 7 of the Criminal Law Amendment Act, Section 51 (a) of AAPDA Prabandhan Act, 2005 and Sections 22(1), 22(2) and 22(3) of the Mahamari Sanshodhan Act, 2020, Police Station Patti, District Pratapgarh.

Learned counsel for the applicant submits that F.I.R. has been lodged against 20 persons including the applicant and 10-12 unknown persons. In the FIR, false allegation has been levelled against the applicant due to personal enmity. He further submits that allegations made against the aforesaid persons are fake and general in nature. There are no firearm injuries upon any person. He further submits that even reading of the entire F.I.R., no case for Section 307 IPC is made out against the accused applicant. It is further submitted that the co-accused namely, Vijay Prakash Yadav @ Kallu and Maneesh Yadav, who are having the same role as that of the applicant, have already been granted bail by this Court vide orders dated 28.07.2021 and 04.10.2021 passed in Anticipatory Bail Application Nos. 7880 of 2021 and 9627 of 2021 respectively. It is, thus, submitted that the applicant is entitled for parity with the said co-accused.

On the other hand, learned A.G.A. opposes the prayer for grant of bail but unable to dispute the submissions raised by the learned counsel for the applicant, particularly the parity claimed with the said co-accused person.

After considering the rival submissions this court finds that there is a case registered against the applicant and it cannot definitely be said when the police may apprehend him. After lodging of the F.I.R., the arrest can be made by the police at its own will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349, the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case, the arrest of an accused should be made.

As per the judgment in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat reported in MANU/SC/0949/2015, the Hon'ble Supreme Court has held that the nature and gravity of the accusation and the exact role of the accused must be properly comprehended, the previous criminal antecedents of the applicant whether he has previously undergone imprisonment on conviction, the possibility of applicant to flee and where the accusation has been made only with the object of injuring or humiliating the applicant by arresting him.

This Court has considered the rival submissions of the respective parties and looking into the circumstances as well as Annexures which have been annexed with the application for anticipatory bail, it is found that the allegations levelled against the applicant in the FIR are general in nature; co-accused having similar role as that of the present applicant, have been granted bail by this Court as well as in the light of judgment of Hon'ble the Supreme Court in case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat (Supra), this Court finds it a fit case to issue an interim order of anticipatory bail as per Section 438 (2) of the Cr.P.C.

Hence, considering the nature of accusations and antecedents of applicant, the applicant, as an interim measure may 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.

This Court directs that in the event of arrest, the accused-applicant, Rajesh Kumar @ Lavkesh Sharma in the aforesaid F.I.R. shall be released forthwith on bail on furnishing a personal bond of Rs.50,000/- and two sureties each in the like amount to the satisfaction of the Arresting officer/Investigating Officer/ S.H.O. concerned on the following conditions:-

(i) The accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;

(ii) The accused-applicant shall not, directly or indirectly make any inducement, threat or promise to any personacquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; and

(iii) The accused-applicant shall not leave India without the previous permission of the Court.

(iv) The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

(v) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173(2) Cr.P.C.

In case, there is breach of any of the above conditions or in case it is otherwise found for any other reason that the bail is required to be cancelled, it shall be open for the State or the appropriate authority to move application for cancellation of bail in accordance with law.

Learned A.G.A. prays for and is granted two weeks' time to file counter affidavit in the matter.

List this case in the week commencing 21.02.2022."

Learned counsel for the applicant submits that applicant has not misused the liberty granted by this court. He has no criminal antecedents.The chargesheet has been filed in the matter. He undertakes to cooperate in the trial.

Learned AGA has opposed the prayer made by the applicant's counsel, however, he does not dispute the fact that the applicant has cooperated during investigation.

On due consideration to the submissions advanced by learned counsel for the parties as well as perusal of the record, so also the fact that there is no one injured in the case, the chargesheet has been filed in the case and applicant has no criminal antecedents, I am of the opinion that the applicant is entitled to be released on 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.

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 interim order dated 27.01.2022 is affirmed. However, the accused-applicantRajesh Kumar @ Lavkesh Sharma is directed to surrender before trial court if he is summoned to face trial for offence in question after filing of the charge sheet. The accused-applicant shall be released on bail by the trial court on the same bail bond(s) as executed by him consequent to the order passed by this Court, as extracted above, subject to his satisfaction, 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.

It is further made clear that in case the accused-applicant has not been arrested during investigation, then he shall be released on bail as directed above, on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the trial Court.

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

Order Date :- 12.1.2023

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