Allahabad High Court
Mayank Mishra vs State Of U.P. Thru. Prin. Secy. ... on 9 January, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1380 of 2022
Applicant :- Mayank Mishra
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Ashutosh Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Karunesh Singh Pawar,J.
Counter affidavit filed by the State is taken on record.
Heard learned counsel for the applicant, learned Additional Government Advocate for the State and perused the record.
A Co-ordinate Bench of this Court vide order dated 25.08.2022 has granted interim protection to the applicant and passed the following order which covers the gist of the controversy: The order dated 25.08.2022 is extracted below:
"Heard Sri Ashutosh Srivastava, learned counsel for the applicant and Sri Hari Shankar Bajpayee, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of applicant Mayank Mishra under Section 438 of the Code of Criminal Procedure, with a prayer to release him on anticipatory bail in Case Crime No. 383 of 2018, for offence punishable under Section 498-A of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act, registered at Police Station- Asandra, District- Barabanki, after rejecting the anticipatory bail application of the applicant by Sessions Judge, Barabanki vide order dated 03.03.2022.
As per the allegation in the F.I.R. dated 26.11.2018 which has been lodged by the victim against the applicant and other family members stating that the marriage of the victim was solemnized on 1.12.2016 and two incident of committing mar-pit with the victim have been mentioned as on 23.12.2017 & 08.01.2018 and lastly on 11.11.2018. The applicant and accused persons came into parental house of the victim at 08:00 P.M. and committed mar-pit with the victim in presence of her mother Smt. Kusum Tiwari.
Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that the F.I.R. has been lodged under Section 498-A, 323 I.P.C. and under Section 3/4 of Dowry Prohibition Act but the charge sheet has been submitted under Section 498-A I.P.C. & Section 3/4 of Dowry Prohibition Act after recording the statement of mother of victim Smt. Kusum Tiwari.
Learned counsel for the applicants relied upon the judgment of the Apex Court in Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667, where it was held that the courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegation of the complaint are required to be scrutinized with great care and circumspection.
It is further submitted that the applicant is no more required for custodial interrogation. The applicant has no criminal history and he has not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. It is further contended that the applicant is ready to participate in the investigation.
Learned A.G.A. has opposed the prayer for anticipatory bail of the applicant.
It is settled position of law that the anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied, where the Court is prima facie of the view that the applicant has falsely roped in the crime and would not misuse his liberty.
Considering the facts and circumstances of the case and the law laid down by the Hon'ble Apex Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC Online SC 98, ground for grant of ad interim anticipatory bail is made out.
Learned A.G.A. may file counter affidavit within two weeks.
Rejoinder affidavit, if any, may be filed within one week thereafter.
Put up this case as fresh for final hearing on 16.09.2022.
In case of arrest, the applicant, Mayank Mishra is directed to be enlarged on anticipatory bail till the hearing of the present application in above case crime number, on his furnishing personal bond of Rs. 25,000/- and two sureties each of like amount before the Station House Officer of Police Station/Court concerned with the following conditions:-
(i) The applicant shall make himself available for interrogation by the police officer as and when required, if investigation is in progress;
(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 such person from disclosing such facts to the Court or to any police officer;
(iii) The applicant shall not leave the country without the previous permission of the Court and if he has passport, the same shall be deposited by them before the S.S.P./S.P. concerned/Court concerned;
(iv) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked;
(v) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
The Investigating Officer will continue with the investigation, if it is in progress and will not be affected by this order. "
Learned counsel for the applicant submits that the entire family has been implicated in the case. The dispute between the parties is matrimonial in nature. The applicant has no criminal antecedents. The applicant has co-operated in the investigation. Chargesheet has been filed. The applicant has not misused the liberty granted by this Court.
Learned AGA has opposed the prayer for anticipatory bail, however, he could not dispute the fact that the applicant has no criminal antecedents and has co-operated in the investigation.
On due consideration to the submissions advanced by learned counsel for the parties as well as perusal of the record, so also the statements of the prosecution witnesses, namely, Ramkaran Pandey as well as Mitu Pandey who have denied the incident which is alleged to have taken place on 11.11.2018 and also the fact that the applicant has co-operated in the investigation, has no criminal antecedents and further undertakes to co-operate in the trial and in view of the judgment of Hon'ble Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi) 2020 SCC OnLine 98, the anticipatory bail application is allowed.
In the event of arrest, the applicant-Mayank Mishra shall be released on anticipatory bail on his furnishing on the same bail bonds as executed by him consequent to the order dated 25.08.2022, as extracted above, subject to the satisfaction of trial court with the following conditions.
(i) The applicant shall make himself available for interrogation by a police officer as and when required;
(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 or tamper with the evidence;
(iii) The applicant shall not leave India without the previous permission of the court;
(iv)The applicant shall not pressurize/ intimidate the prosecution witness;
(v)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
(vi) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail.
Order Date :- 9.1.2023
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