Vivekanand Singh vs State Of U.P. And 2 Others
2023 Latest Caselaw 14336 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:97831
 
Court No. - 75
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11101 of 2022
 

 
Applicant :- Vivekanand Singh
 
Opposite Party :- State Of U.P. And 2 Others
 
Counsel for Applicant :- Vivek Chaubey,Nipun Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.

Heard learned counsel for the applicant and learned Additional Government Advocate for the State of U.P. and perused the record.

This Criminal Misc. Second Anticipatory Bail Application under section 438 Cr.P.C. has been moved seeking Anticipatory Bail in Case Crime No. 0053 of 2022, under Sections 147, 148, 149, 307, 323, 504, 506, 427, 34, 216 I.P.C. and Section 7 Criminal Law (Amendment) Act, Police Station Shivpur, District Varanasi.

Vide order dated 02.06.2022, Criminal Misc. First Anticipatory Bail Application of the applicant was rejected by this Court in Criminal Misc. Anticipatory Bail Application U/s 438 Cr.P.C. No. 4132 of 2022, which reads as under:-

"Heard learned counsel for the applicant, learned Additional Government Advocate for the State of U.P. and perused the record.

This Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicant after rejecting his anticipatory bail application by the order dated 26.04.2022 passed by Sessions Judge, Varanasi seeking Anticipatory Bail in Case Crime No. 53 of 2022, under Sections 147, 148, 149, 307, 323, 504, 506, 427, 34, 216 IPC and Section 7 Criminal Law Amendment Act, police station Shivpur, district Varanasi.

As per prosecution case, in brief, opposite party no. 3/informant lodged the first information report on 09.02.2022 at 23:10 hours at Case Crime No. 0053 of 2022, under Sections 147, 148, 149, 307, 323, 504, 506, 427, 34 IPC and Section 7 Criminal Law Amendment Act with regard to an incident which took place on the same day at 16:00 hours against Sujal Singh and 6-7 unknown persons alleging inter alia that on 09.02.2022 at around 04:00 P.M., he was with his friend and going on a motor-cycle. As soon as he reached near the boundary of Central Jail, one Scorpio and one Endeavour Cars of black colour bearing Nos. 1112 and 1112, respectively, came there and the persons sitting on the vehicles started firing with an intention to kill him. He left the motor-cycle and ran towards the central jail residence but the aforesaid 6-7 boys got down from the said vehicles and caught him by running and badly beaten him by hockey and stick whereby he received serious injuries. The first information report further alleges that a stampede broke out at the spot and shopkeepers started running after downing shutters of their shops. One of the attackers was named Sujal Singh. It is also mentioned that in the said incident, one unidentified person got shot in the firing.

Learned counsel for the applicant has argued that the applicant is not named in the first information report. It is next submitted that on 14.02.2022, co-accused Rohit Sonkar @ Pammi Sonkar was arrested and he in confessional statement disclosed the complicity of present applicant Vivekanand Singh alongwith other co-accused persons. During investigation, informant/opposite party no. 3 has given affidavit alongwith an application before the Magistrate concerned mentioning therein that in the incident, Rohit Sonkar, Samsher Singh Rana, Vijayraj Singh, Ashish Singh, Rahul Pandey, Kshitijraj, Ashish @ Babu Yadav, Vivekanand Singh, Guruprakash Singh @ Mulayam, Sujal Raj Singh were not involved. It is further submitted that injured Anshuman Dubey also given an application dated 09.02.2022 to Station House Officer, Shivpur, Varanasi in which he did not take the name of the present applicant. It is further pointed out that regarding the said incident, one first information report was lodged by Manish Kumar Singh on 12.02.2022 registered at Case Crime No. 56 of 2022, under Sections 147, 148, 149, 452, 395, 427, 504, 506 IPC against Shobhit Singh, Akash Dubey, Chetan Patel, Sachin V., Anshman, Sanskar and 15-20 unknown persons in which also the informant has given an affidavit that the first information report was lodged under some confusion. Lastly, it is submitted that applicant has apprehension of imminent arrest and in case, he is released on anticipatory bail, he will not misuse the liberty and would cooperate with the investigation.

Learned Additional Government Advocate, who has accepted notice of this case on behalf of State of U.P., has opposed the prayer for granting anticipatory bail to the applicant by contending that the injured has received serious injury in this case. Relying on the judgment of the Apex Court in the case of Jai Prakash Singh Vs. State of Bihar, (2012) 4 SCC 379, it is submitted that in the said case, the Apex Court has observed that anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has been falsely enroped in the crime and would not misuse his liberty. It is also submitted that from the facts which has been brought on record, it is apparently clear that informant and injured have been pressurized to resile from their statement, therefore, tampering the prosecution witnesses by mounting pressure upon them is apparent on record.

Object of Section 438 of the Code of Criminal Procedure, is that a person should not be unnecessarily harassed or humiliated in order to satisfy personal vendetta or grudge of complainant or any other person operating the things directly or from behind the curtains. It is well settled that discretionary power conferred by the legislature on this court cannot be put in a straitjacket formula, but such discretionary power either grant or refusal of anticipatory bail has to be exercised carefully in appropriate cases with circumspection on the basis of the available material after evaluating the facts of the particular case and considering other relevant factors (nature and gravity of accusation, role attributed to accused, conduct of accused, criminal antecedents, possibility of the applicant to flee from Justice, apprehension of tampering of the witnesses or threat to the complainant, impact of grant of anticipatory bail in investigation, trial or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.

In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties as mentioned above, taking into consideration the role assigned to the applicant as per prosecution case, gravity and nature of accusation as well as the manner of committing the incident, this Court is of the view that no case for exercising its discretionary power under Section 438 Code of Criminal Procedure is made out in favour of applicant.

Accordingly, this application under section 438 Cr.P.C. is rejected.

It is clarified that anything said in this order at this stage is limited to the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case."

The brief prosecution case has already been noted in the order dated 02.06.2022, therefore, there is no need to refer the same again.

The main substratum of argument of learned counsel for the applicant is that the investigation with regard to present applicant is still pending and other co-accused persons namely Ashish Singh, Mulayam Singh @ Guru Prakash Singh, Ashish Alias Babu Yadav and Sujal Raj Singh @ Shani have been granted anticipatory bail vide orders dated 06.09.2022, 15.09.2022, 27.09.2022 and 12.10.2022 in Criminal Misc. Anticipatory Bail Application Nos. 6174 of 2022, 6452 of 2022, 9470 of 2022 and 9249 of 2022 respectively, therefore, applicant may also be granted anticipatory bail, during investigation.

On the other hand, learned A.G.A. vehemently opposed the prayer for anticipatory bail of the applicant by contending that the investigation is pending but the applicant is absconding and not co-operating in the investigation, therefore, non-bailable warrant has been issued against him on 22.05.2022. It is also submitted that other co-accused persons named above have obtained the anticipatory bail by concealing the aforesaid order dated 02.06.2022. It is also pointed out that the applicant has not come with clean hand as in paragraph no. 31 of the affidavit, he has mentioned that applicant has no previous criminal history except the present one whereas apart from this case, applicant has criminal history of following two cases:-

(i) Case Crime No. 173 of 2017, under Sections 147, 427, 452, 504, 506 I.P.C., Police Station Shivpur, District Varanasi.

(ii) Case Crime No. 178 of 2021, under Sections 147, 148, 323, 352, 506 I.P.C., Police Station Cantt, District Varanasi.

On the basis of aforesaid submission, it is also submitted that investigation of this case is going on. Considering the prosecution case, offence is made out against the applicant.

Having heard the learned counsel for the parties and perusing the record, I find that after rejecting the first anticipatory bail application of the applicant on 02.06.2022, he did not surrender before the concerned court below and was absconding despite issuance of non-bailable warrant against him as noted above. The applicant has also concealed his criminal history in this anticipatory bail application. It appears that the order of this Court dated 02.06.2022 passed in first criminal misc. anticipatory bail application of the applicant was not brought to the knowledge of the co-ordinate Bench at the time of considering the anticipatory bail of other co-accused. Under he facts of the case, in light of the judgment of the Apex Court in the case of Prem Shankar Prasad vs. The State of Bihar & Anr., 2021 SCC OnLine SC 955, the applicant is not entitled to be enlarged on anticipatory bail.

Accordingly this application under section 438 Cr.P.C. is rejected.

It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case. The investigating officer of this case shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials / evidences on record.

Order Date :- 8.5.2023

Saurabh