Allahabad High Court
Himanshu Rai vs State Of U.P. on 27 January, 2023
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 77
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11994 of 2021
Applicant :- Himanshu Rai
Opposite Party :- State of U.P.
Counsel for Applicant :- Sudeep Dwivedi
Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Sudeep Dwivedi, learned counsel for the applicant and Mr. K.P. Pathak, learned counsel for the State.
The present application has been moved seeking anticipatory bail in Case Crime No. 189 of 2021, under Sections 147, 323, 308, 427 IPC, P.S. Bhelupur, District-Varanasi, with the prayer that in the event of arrest, applicants may be released on bail.
Earlier on 21.06.2021, interim anticipatory bail was granted to the applicant.
Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case and he has an apprehension that he may be arrested in the above mentioned case, whereas there is no credible evidence against him. He further submits that the applicant has always co-operated in the investigation and has not misused the liberty of aforesaid interim anticipatory bail, which was granted to him on 21.06.2021 by the Co-ordinate bench of this Court. He further submits that the entire allegations contained in the FIR is absolutely false and vague. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegation made against him. The circumstances which, as per counsel, led to the false implication of the applicant has also been touched upon length. Learned counsel for the applicant undertakes that he has co-operated in the investigation and is ready to do so in trial also failing which the State can move appropriate application for cancellation of anticipatory bail.
Learned AGA for the State, on the basis of instructions, submits that from the material as collected by the Investigating Officer, credible, clinching as well as documentary evidences showing the complicity of commission of the crime has been found, therefore, the charge sheet has been submitted against the applicant on 20.12.2022. From the case diary, learned AGA has pointed out that the injured has suffered nasal bone fracture. When such the injury has been caused in an incident in which applicant has also participated, the offence is serious in nature. He further submits that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail.
Object of section 438 of the Code of Criminal Procedure, is that a person should not be unnecessarily harassed or humiliated in order to satisfy personal vendetta or grudge of complainant or any other person operating the things directly or from behind the curtains. It is well settled that discretionary power conferred by the legislature on this court can-not be put in a straitjacket formula, but such discretionary power either grant or refusal of anticipatory bail has to be exercised carefully in appropriate cases with circumspection on the basis of the available material after evaluating the facts of the particular case and considering other relevant factors (nature and gravity of accusation, role attributed to accused, conduct of accused, criminal antecedents, possibility of the applicant to flee from Justice , apprehension of tampering of the witnesses or threat to the complainant, impact of grant of anticipatory bail in investigation, trial or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.
Grant of anticipatory bail may hamper the custodial interrogation and will lead to nondisclosure of useful information and material facts and information. In the case of P. Chidambaram vs. Directorate of Enforcement, reported in (2019) 9 SCC 24, the Apex Court held as under:-
"74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper theinvestigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep.By The CBI v. Anil Sharma(1997) 7 SCC 187, the Supreme Court held as under:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order underSection 438of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. ........."
In another judgment of Apex Court in case of Sadhna Chaudhary Vs. State of Rajasthan & Anr., reported in 2022 (237) AIC 205 (SC), the Apex Court has held that while dealing with an application for anticipatory bail, the High Court must consider the nature and gravity of the accusation, the exact role of the accused and apprehension of the arrest etc.
In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties, taking into consideration the role assigned to the applicant as per prosecution case, gravity and nature of accusation as well as reasons mentioned above, this court is of the view that no case for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of applicant.
Accordingly this application under section 438 Cr.P.C. is rejected.
Interim order, if any, stands vacated.
It is open to the court concerned/authority to proceed in accordance with law.
Registrar (Compliance) is directed to communicate this order to the concerned court/authority for necessary information and compliance forthwith.
Order Date :- 27.1.2023
Jitendra/-
