Allahabad High Court
Atul Kesharwani vs State Of U.P. on 26 July, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:149564
Court No. - 72
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8282 of 2023
Applicant :- Atul Kesharwani
Opposite Party :- State of U.P.
Counsel for Applicant :- Birendra Singh
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard Sri Birendra Singh, learned counsel for the applicant, Sri Faizan Siddiqui, learned counsel for the informant and Sri R.P. Patel, learned A.G.A. for the State as well as perused the record.
3. The present anticipatory bail application has been filed on behalf of the applicant in Case Crime No.46 of 2021, registered under Section 333 I.P.C. at Police Station- Mahewa Ghat, District Kaushambi with a prayer to enlarge him on anticipatory bail.
4. Learned counsel for the applicant has stated that the applicant was enlarged on bail in the present matter vide order dated 18.5.2022 under Sections 332, 353, 504, 325 I.P.C. and the final report (charge-sheet) was submitted in the said sections only, but subsequently, a supplementary charge-sheet has been submitted by the said Investigating Officer under Section 333 I.P.C. also, as such the applicant has been subjected to double jeopardy. The applicant himself has been enlarged on bail in the present matter, as such he is entitled for anticipatory bail in the added section. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. The applicant has apprehension of his arrest. 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.
5. Learned counsel for the applicant has placed much reliance on the judgments of the Apex Court passed in case of Bhadresh Bipinbhai Sheth vs. State of Gujarat & Another reported in 2016 (1) SCC (Cri) 240 and Manoj Suresh Jadhav & Ors. vs. The State of Maharashtra, reported in 2018 SCC OnLine SC 3428, wherein the applicant therein was enlarged on anticipatory bail in the added sections U/S 438 Cr.P.C. after being enlarged on regular bail U/S 439 Cr.P.C. Learned counsel has also relied on the judgment of the Apex Court in S.L.P. No.10179 of 2017, order dated 7.5.2018.
6. Per contra, learned counsel for the informant has vehemently opposed the present anticipatory bail application on the ground that the matter pertains to forum shopping as the applicant had approached this Court by invoking powers under Section 482 Cr.P.C. twice and had failed, but could not dispute that the applicant was already on bail in the said sections. Learned counsel has further stated that in the light of the settled law of this Court in the case of Shivam vs. State of U.P. and Another reported in AirOnline 2021 All 484, the applicant is also not entitled for anticipatory bail.
7. Learned A.G.A. has also opposed the present anticipatory bail application.
8. On due consideration to the arguments advanced by learned counsel for the applicant as well as learned A.G.A., considering the nature of accusations and antecedents of the applicant and taking into consideration the case law adduced by learned counsel for the applicant and taking into account the fact that the applicant was on bail in the said case crime number and the parameters mentioned in the judgment of this Court passed in Shivam (supra) do not apply to the present case, the applicant is liable to be enlarged on anticipatory bail in view of the judgment of Supreme Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi), (2020) 5 SCC 1". The future contingencies regarding the anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
9. In view of the above, the anticipatory bail application of the applicant is allowed. Let the accused-applicant- Atul Kesharwani be released forthwith in the aforesaid case crime (supra) on anticipatory bail till the conclusion of trial on furnishing a personal and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i). that the applicant shall make himself available for interrogation by a police officer as and when required;
(ii). that 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). that the applicant shall not leave India without the previous permission of the court;
(iv). that in case charge-sheet is submitted the applicant shall not tamper with the evidence during the trial;
(v). that the applicant shall not pressurize/ intimidate the prosecution witness;
(vi). that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted;
(vii). that in case of breach of any of the above conditions the court concerned shall have the liberty to cancel the bail.
10. It is made clear that observations made hereinabove are exclusively for deciding the instant anticipatory bail application and shall not affect the trial.
[Krishan Pahal, J.]
Order Date :- 26.7.2023
Vikas
