Musafir vs State Of U.P. And Ors.
2023 Latest Caselaw 2757 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. - 8032 of 2021
 

 
Applicant :- Musafir
 
Opposite Party :- State Of U.P. And Ors.
 
Counsel for Applicant :- Narendra Gupta
 
Counsel for Opposite Party :- G.A.,Anil Kumar
 

 
Hon'ble Karunesh Singh Pawar,J.

The present bail application has been filed by the applicant under Section 438 Cr.P.C. apprehending his arrest in Case Crime No.161 of 2021, under Sections 147, 148, 323, 504, 506, 307, 325 I.P.C. and Section 3(2)(5) of the SC/ST Act, P.S. Pisawan, District Sitapur.

Heard learned counsel for applicant as well as learned A.G.A. for the State and perused the record.

The Coordinate Bench of this Court vide interim order dated 30.07.2021 has noted the gist of the controversy involved in this case. The order is extracted below:-

"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

The present application under Section 438 of Cr.P.C. has been filed for anticipatory bail in Case Crime No.161 of 2021, under sections 147, 148, 323, 504, 506, 307, 325 I.P.C. and Section 3 (2) (5) of SC/ST Act, Police Station Pisawan, District Sitapur.

Learned A.G.A. has raised preliminary objection that the application under Section 438 Cr.P.C. in relation to the offence under the provision of SC/ST Act, 1989 is barred under Section 18 of aforesaid Act, therefore, learned court below has rightly rejected the bail application of the applicant and the present bail application is not maintainable.

Learned counsel for the applicant relied on the decision of Hon'ble Supreme Court in the case of Prathvi Raj Chauhan Vs. Union of India & Ors reported in 2020 (4) SCC 727 and submitted that the Hon'ble Apex Court has held that the provision of Section 18A and 18 in relation to anticipatory bail is concerned, the Court has the inherent power to direct a pre-arrest bail in cases, where no prima facie material exists. He also relied on the decision of Hon'ble Supreme Court in the case of Union of India Vs. State of Maharashtra and others reported in (2020) 4 SCC 761 and submitted that the Hon'ble Apex Court has also held that if prima facie case has not been made out attracting the provisions of SC/ST Act, 1989, in that case, the bar created under Section 18 of the 1989 Act on the grant of anticipatory bail is not attracted and it is the function of the Court to decide whether accused is entitled to bail under Section 438 Cr.P.C. in case no prima facie case is made out.

Considering the preliminary objection of learned A.G.A. as well as reply of the learned counsel for the applicant and going through the decisions of the Hon'ble Supreme Court relied by the counsel for the applicant in the case of Prathvi Raj Chauhan Vs. Union of India & Ors (supra) and Union of India Vs. State of Maharashtra and others (supra), it is very much clear that if prima facie case has not been made out attracting the provisions of SC/ST Act, 1989, in that case, the bar created under Section 18 of the 1989 Act on the grant of anticipatory bail is not attracted and it is the function of the Court to decide whether accused is entitled to bail under Section 438 Cr.P.C. in case no prima facie case is made out and Hon'ble Apex Court also held that in case any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the High Court for quashing the FIR under Section 482 Cr.P.C., therefore, I am of the view that the present application is maintainable and the objection raised by the learned A.G.A. is rejected.

Learned counsel for the applicant has submitted as per the prosecution case, the incident was taken place on 14.05.2021 and two persons received injuries, and thereafter, FIR was lodged by the complainant/injured on 19.05.2021 against four persons, namely, Kallu, Afsar, Ashfak and Munni. He further submitted that FIR was lodged by the injured, therefore, he was fully aware about active participation of the accused persons and applicant was dragged by the Investigating Officer by recording Mazeed statement (second statement recorded under Section 161 Cr.P.C. of the informant) as well as second statement of the injured, namely, Sanjay Pasi and name of two persons including the applicant were added. He further submitted that Majeed statement of the informant, clearly reveals that case has been developed, therefore, the anticipatory bail may be granted to him.

Learned A.G.A. opposes the prayer of the applicant and submitted that the bail application of the applicant is not maintainable. He further submitted that in the Majeed statement, the role of applicant is justified by the injured witnesses, but the FIR was lodged by the injured/informant and only four persons have been named and thereafter, in the Majeed statement, role of six persons have been explained.

Considering the argument of learned counsel for the parties and going through the contents of the FIR, it is evident that FIR was lodged by the injured persons and only four persons have been named, thereafter, invoking the provision of Section 482 Cr.P.C., read with Section 438 Cr.P.C. and law laid down by the Hon'ble Apex Court in the case of Prathvi Raj Chauhan Vs. Union of India & Ors (supra) and Union of India Vs. State of Maharashtra and others (supra), I am of the view that the applicant is entitled for interim bail.

Till the next date of listing, in the event of arrest of the applicant, namely, Musafir in the aforesaid case, he shall be released forthwith by the Station House Officer of the police station concerned, on his furnishing personal bond of Rs.50,000/- with the following condition:-

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

(ii) That the accused-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; and

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

However, it is directed that the applicant will join and participate in each and every aspect of Investigation and will lend full assistance to the Investigating Agency, even with regard to 'discovery of fact' if and when required so by the Investigating Agency.

Issue notice to respondent Nos.2 to 5.

Steps be taken within ten days.

List in the month of October, 2021 for final disposal.

The C.J.M. concerned is directed to ensure the service on the respondent Nos. 2 to 5.

In the meantime, learned A.G.A may file objection."

Learned A.G.A. has opposed the bail prayer.

On due consideration of the arguments advanced by learned counsel for both the parties; perusal the record; so also the judgment of Hon'ble Supreme Court in the case of Prathvi Raj Chauhan (supra) and also considering the fact that F.I.R. was lodged by the injured himself however, neither he has taken the name of the accused in the F.I.R. nor in his statement under Section 161 Cr.P.C.; the name of the applicant has surfaced in the re-statement of injured for the first time, prima facie case for anticipatory bail is made out.

In view of the above, the anticipatory bail application is allowed. It is provided that in the event of arrest, the applicant shall be released on anticipatory bail in the aforesaid Case Crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the following conditions:-

(1) The applicant shall cooperate in the investigation and he will not influence the witnesses.

(2) The accused-applicant will remain present as and when the arresting officer/1.O./S.H.O. concerned call (s) for investigation/interrogation.

(3) The applicant shall not leave India without previous permission of the Court.

(4) In case of default, it would be open for the investigating agency to move application for cancellation of this order.

Order Date :- 27.1.2023

Saurabh Yadav/-