Allahabad High Court
Brahmashankar vs State Of U.P. And Another on 21 March, 2023
Bench: Nalin Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 84
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 794 of 2023
Applicant :- Brahmashankar
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- R S Dubey,Savita Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Nalin Kumar Srivastava,J.
(Crl. Misc. Correction Application No.1 of 2023)
Heard learned counsel for the applicants and learned A.G.A. for the State.
On 14.03.2023 following order has been passed by this Court:-
"Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Brahmashankar in Case Crime No. 475 of 2020, under Sections 147, 323, 352, 452, 427, 504, 506, 325, 308 I.P.C., Police Station - Kotwali, District - Deoria.
Heard learned counsel for the applicant as well as the learned AGA and perused the material available on record.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. Allegations levelled against the applicant are false. Applicant's case is squarely covered under Section 438 Cr.P.C. Investigation is pending in the present matter. It is further submitted that if the applicant is enlarged on bail, he will not misuse the liberty. The applicant has apprehension of his arrest any time.
Learned A.G.A. opposed the prayer.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.
In this matter, as is evident from the record, offences levelled against the applicant are of Sections 147, 323, 352, 452, 427, 504, 506, 325, 308 IPC, which are punishable with the imprisonment upto seven years. Specific provisions under Section 41-A CrPC have been provided giving protection to the accused person from arrest for the offences punishable upto seven years' imprisonment and in Arnesh Kumar vs. State of Bihar and another, (2014) 8 SCC 273, the Hon'ble Apex Court has also emphasized upon the power of police to arrest without warrant and it has been clarified that a balance between individual liberty and societal order should be made while exercising power of arrest. It has also been directed that where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine, the police officer shall not arrest the accused unnecessarily and Magistrate shall not authorize detention casually and mechanically. Even in Section 438 CrPC it has been promulgated that accused must have reason to believe that he may be arrested in cognizable offence by the police to get protection of anticipatory bail. In the light of aforesaid provisions, the applicant has no reason to believe that he may be arrested. Hence, having regard to the entire facts and circumstances of the case, no indulgence is warranted in the matter. Prayer made in the application is refused.
The application stands disposed of accordingly."
It appears that in this matter after investigation charge sheet has been filed against the applicant and this fact has been mentioned in paragraph no.11 of the application which was oversighted. Now, the following order is passed in the matter in place of aforesaid order dated 14.03.2023:-
"Heard learned counsel for the applicant, learned AGA and perused the material available on record.
Present Anticipatory Bail Application has been filed with the prayer to grant anticipatory bail to the applicant - Brahmashankar in Case Crime No. 475 of 2020, under Sections 147, 323, 352, 452, 427, 504, 506, 325, 308 I.P.C., Police Station - Kotwali, District - Deoria.
It is submitted by the learned counsel for the applicant that the applicant is innocent and has no concern with the present matter. Allegations levelled against the applicant are false. It is further submitted that charge-sheet has been submitted in the matter. Applicant's case is squarely covered under Section 438 Cr.P.C. It is further submitted that if the applicant is enlarged on bail, he will not misuse the liberty. The applicant has apprehension of his arrest any time.
Learned A.G.A. opposed the prayer.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record carefully.
In this matter, as is evident from the record, offences levelled against the applicant are of Sections147, 323, 352, 452, 427, 504, 506, 325, 308 IPC, which are punishable with the imprisonment upto seven years. The applicant has accorded his co-operation in the investigation. In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.
It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.
Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is not a fit case for anticipatory bail to the applicants till the end of the trial.
However, it is observed that the bail application of the applicant, if moved, shall be considered and decided by the Court concerned in terms of the law laid down by the Hon'ble Apex Court in Satender Kumar Antil vs. Central Bureau of Investigation and another, 2022 SCC OnLine SC 825.
On the basis of request of the learned counsel for the applicant, it is further directed that the Court concerned while considering the bail application of the applicant in the light of Satender Kumar Antil case (supra), shall pass an order strictly in compliance of the directions given in the aforesaid judgment by the Hon'ble Supreme Court, in letter and spirit.
The application stands disposed of accordingly."
Correction application is allowed.
Order Date :- 21.3.2023
Atul
