Ganesh Singh And 2 Others vs State Of U.P.
2024 Latest Caselaw 18629 ALL

Allahabad High Court

Ganesh Singh And 2 Others vs State Of U.P. on 23 May, 2024

Author: Deepak Verma

Bench: Deepak Verma

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:94004
 
Court No. - 75
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 5080 of 2024
 

 
Applicant :- Ganesh Singh And 2 Others
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Amit Kumar Singh
 
Counsel for Opposite Party :- Abhishek Dubey,G.A.,Sudarshan Singh
 

 
Hon'ble Deepak Verma,J.
 

1. Heard learned counsel for the applicants, learned counsel for the informant, learned A.G.A. for the State and perused the record.

2. The instant anticipatory bail application has been moved by the applicants for enlarging them on bail in Case Crime No. 186 of 2013, under Sections 323, 386, 504, 506 IPC, Police Station- Chaubeypur, District- Varanasi, during pendency of the trial.

3. Learned counsel for the applicants submitted that applicants are innocent and have been falsely implicated in the present case. He next submitted that instant first information report has been lodged with malicious intention as earlier applicants' sister lodged an first information report against the informant. He next submitted that the Investigating Officer has submitted charge-sheet against the applicants and earlier applicants approached this Court by filing an Application U/S 482 No. 32602 of 2023, challenging the said charge-sheet as well as entire proceedings of the case, the said application u/s 482 Cr.P.C. is still pending before this Court.

4. Counsel for the applicants in support of his submissions has placed reliance upon the judgment passed by the Co-ordinate Bench of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 2110 of 2021 (Shivam Vs. State of U.P. and Another).

5. Counsel for the applicant has also placed reliance upon the judgment passed by the Co-ordinate of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8285 of 2020 (Adil Vs. State of U.P.). In para no. 6 of the said judgment, the Co-ordiante Bench has held as under:-

"6. Learned Senior Counsel for the applicant has relied upon the judgment of the Patna High Court in the case of Anirudh Prasad @ Sadhu Yadav vs. The State of Bihar dated 22, May, 2006 wherein the Patna High Court had earlier granted anticipatory bail to the applicant till the submission of police report. Later when the charge sheet was filed against him he moved second anticipatory bail application for granting him anticipatory bail till the conclusion of trial. The prayer was turned down by Patna High Court but the Apex Court did not agreed to the same and directed the Patna High Court to consider the bail application of the applicant afresh. The Patna High Court found that the power to grant anticipatory bail does not comes to an end by mere submission of charge sheet against the applicant. After considering the merits of the case anticipatory bail was granted to the applicant by the Patna High Court till the conclusion of trial. "

6. Per contra, learned A.G.A. as well as counsel for the informant vehemently opposed the anticipatory bail application of the applicants and submitted that applicants are not co-operating with the trial proceedings, as such, N.B.W. have been issued and proceedings under Section 82 Cr.P.C. have also been initiated against the applicants. Counsel for the informant next submitted that aforesaid Application U/S 482 No. 32602 of 2023, is still pending before this Court and till date no interim order has been passed in favour of the applicants.

7. Considered the submissions raised by counsel for the parties and perused the entire record.

8. In Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 2110 of 2021 (Shivam Vs. State of U.P. and Another), the Co-ordinate has held that in following cases, anticipatory bail cannot be granted to an accused person after submission of the charge-sheet:-

"43) However, in the following cases, anticipatory bail cannot be granted to an accused after submission of charge-sheet :-

1) Where the Investigating Officer has submitted charge-sheet but it is argued that the statements of the witnesses recorded are not truthful. Truthfulness or otherwise of the statements of the witnesses recorded by investigating officer in support of complaint case are to be tested during trial and not at the stage of consideration of anticipatory bail application;

2) Where the F.I.R/complaint discloses the alleged offences and the Investigating Officer has collected material which supports the same, without any contradiction, even after considering the statements/material provided by the accused side;

3) Where there are cross cases registered by both the parties against each other and the offences alleged is fully proved and charge-sheet has been submitted. Since the incident, as alleged, has been found to have taken place and both the parties admit such an occurrence, hence, there is no doubt about the incident taking place;

4) Where charge-sheet has been submitted after compliance of the legal formalities like sanction for prosecution and the F.I.R/complaint has been lodged by the competent authority and there is supporting evidence;

5) Where the counterblast implication is alleged that earlier incident took place much before with the incident in dispute and there is no proximity of the second incident in terms of time with the second incident;

6) Where there exists a civil remedy but on the same set of allegations, civil wrong and criminal wrong both are made out and charge-sheet has been submitted only regarding the criminal wrong;

7) Where the Investigating Officer has approached the accused for recording of his statement during investigation and he has refused to give his statement to the Investigating Officer in his defence and charge-sheet has been submitted against him;

8) Where the accused has unsuccessfully challenged the charge-sheet before this Court or any proceedings are pending before this Court regarding the charge-sheet submitted against the accused;

9) Where the offence alleged is serious in nature, the accused is habitual in criminality, tendency of abscondance, has violated the conditions of bail granted to him earlier, etc.; and

10) Where the accused is avoiding appearance before the Court after the cognizance of offence has been taken by the Court on a police report or in a complaint and coercive processes have been repeatedly issued against him and there is no valid explanation given by the accused for his non-appearance before the Court. "

9. From perusal of the record, it is apparent that one proceeding in application under Section 482 Cr.P.C. is pending for consideration before this Court and applicant has again initiated the instant proceeding by filing an anticipatory bail application under Section 438 Cr.P.C. Trial Court has initiated proceeding agaisnt the applicants by issuing N.B.W. and started proceeding under Section 82 Cr.P.C. The Hon'ble Apex Court in Srikant Upadhyay & Ors. v. State of Bihar & Anr.; reported in [2024] 3 S.C.R. 421, has held that if Trial Court has issued N.B.W. and initiated proceedings under Section 82 Cr.P.C., then, anticipatory bail application cannot be allowed. In para 43(8) of Shivam (supra), the co-ordinate Bench has also held that an accused person cannot be granted anticipatory bail, where the accused has unsuccessfully challenged the charge-sheet before this Court or any proceedings are pending before this Court regarding the charge-sheet submitted against the accused.

10. With the aforesaid observations, the instant anticipatory bail application is rejected.

Order Date :- 23.5.2024

Aditya