Allahabad High Court
Abhishek Kumar Tiwari vs State Of U.P. Thru. Prin. Secy. ... on 24 July, 2023
Bench: Subhash Vidyarthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:49172
Court No. - 16
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 515 of 2023
Applicant :- Abhishek Kumar Tiwari
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. And Another
Counsel for Applicant :- Rahul Kumar Shukla,Prabhat Kumar Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Subhash Vidyarthi,J.
On 28.02.2023, after hearing the learned counsel for the applicant and the learned A.G.A. this Court had passed the following interim order -
"The applicant has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in Case Crime No.220 of 2022 under sections 323, 504, 506, 498-A, 328, 308 I.P.C., and 3/4 Dowry Prohibition Act, P.S. Khargupur, district Gonda.
Heard learned counsel for the applicant and learned A.G.A. for the State.
It is submitted on behalf of the applicant that the applicant is son of Jeth of the victim. It is a matrimonial dispute between husband and wife. However, by making sweeping allegations in the first information report as well as in the statement of the injured, the entire family, even the distant family members, has been roped in the first information report. The applicant is residing separately from the victim. Copy of the family register is on record.
It is next submitted that the injuries sustained by the victim may have come due to fight from the husband, however, there is no co-relation with the present applicant. The husband Rajendra Prasad Tiwari has been enlarged on bail vide order dated 21.2.2023 passed in Crl. Misc. Bail application No.14920 of 2022 by this Court on the ground that it was submitted on behalf of the victim that due to misunderstanding, the first information report was lodged by her brother.
He further submits that the applicant has cooperated in the investigation. Charge sheet has been filed. He undertakes on behalf of the applicant that the applicant shall cooperate in the trial.
Learned A.G.A. has opposed the prayer made by the applicant's counsel and has submitted that the victim has suffered fracture in her head and she was poisoned and as per opinion of the doctor, she could have died in case she was not admitted in the hospital in time.. Fifteen days' time is allowed to file objections.
Issue notice to respondent No.2.
List on 6.4.2023.
Without expressing any opinion on the merit of the case and considering the nature of accusation and the applicant having no criminal antecedents, the undertaking given on behalf of the applicant that he shall cooperate in the trial , the complainant has not supported the prosecution case in the bail application filed by the co-accused Rajendra Prasad Tiwari, who has been granted bail by this court, the applicant is residing separately, I am of the opinion that in the event of arrest/surrender before the concerned court, the applicant is entitled to be enlarged on anticipatory 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 accused applicant is directed to surrender before trial court if he is summoned to face trial for offence in question after filing of the charge sheet. In the event of arrest/surrender before the concerned court, the accused applicant shall be enlarged on anticipatory bail by the trial court on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the trial Court, 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."
Notice to the opposite party no. 2 has been served through his heir, but nobody has put in appearance to oppose the application.
The State has filed a counter affidavit, but nothing has come to light which may persuade this Court to take a view, different from the view taken while passing the aforesaid order, nor the learned A.G.A. has pointed out any violation of the consideration of interim anticipatory bail committed by the applicant.
In view of the aforesaid circumstances, the interim order dated 28.02.2023 is hereby made absolute and the application is allowed in terms of the aforesaid order.
(Subhash Vidyarthi J.)
Order Date :- 24.7.2023
A.Nigam
