Allahabad High Court
Brij Kishore vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 4 April, 2025
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:19049
Court No. - 13
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2214 of 2024
Applicant :- Brij Kishore
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Technical Education,Lucknow
Counsel for Applicant :- Bal Keshwar Srivastava,Rishabh Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for the applicant and learned A.G.A. for opposite party No.1. No one has put in appearance on behalf of opposite party Nos.2 and 3.
2. The instant first anticipatory bail application has been moved by the applicant-Brij Kishore, in F.I.R./Case Crime No.405 of 2004, under Section 364 I.P.C., Police Station- Kotwali Nagar, District- Gonda, with the prayer to enlarge him on anticipatory bail, as he is apprehending arrest in the above-mentioned case.
3. Earlier vide order dated 24.10.2024, interim anticipatory bail was granted to the applicant which is as follows :-
"1. Heard learned counsel for the applicant, learned Additional Government Advocate for the State.
2. The instant application has been filed on behalf of the applicant with the prayer to release him on anticipatory bail in FIR/Case Crime No. 405 of 2004, under Section 364 IPC, Police Station Kotwali Nagar, District Gonda.
3. The preliminary objection is raised by learned Counsel for the State that in view of the judgment of Karnataka High Court passed in Criminal Petition No. 9975 of 2021, Ramesh Vs. State through Dy RFO, Hosur Section Gauribidanur Range, Chikkaballapura District-562101, the anticipatory bail application is not maintainable. While adding his argument, he submits that the question which has been referred for answer is that 'whether Section 438 of Cr.P.C. can be invoked once the petitioner appeared through counsel and sought for exemption and the same was allowed ?' He added that the aforesaid reference has been answered in Paragraph nos. 14 and 15 of the judgment and the same is quoted hereunder:
"14. But in the case on hand, it is not in dispute that the petitioner had appeared before the Trial. Court through an advocate and also filed an application under Section 205 of Cr.P.C., instead of 317 of Cr.P.C., seeking an exemption for the day. It is also not in dispute that the sald application was allowed. Once an application seeking an exemption was allowed, the petitioner again cannot invoke Section 438 of Cr.P.C., and instead of filing an applicatiori for recailing the warrant issued by the Court for non-appearance has approached this Court and also the Trial Court. Apart from that, the appearance of the petitioner before the Trial Court has been suppressed before this Court and nowhere in the petition has stated that he had appeared through the Counsel and only on perusal of the order of the Trial Court, It is clear that he had appeared through the Counsel and exemption application was allowed but he did not appear before the Court. Hence, NBW was issued. When such being the factual aspects of the case, once he appeared through the Court, whether it is through Counsel or personally, he cannot seek again anticipatory ball. The very contention of the learned counsel for the petitioner is that the petitioner appeared before the Trial Court through an Advocate is not amount to custody or an arrest, cannot be accepted and he was permitted to appear through Counsel and once permitted to appear through counsel he cannot contend that he had not appeared physically. The petitioner legally permitted to appear and once he has been permitted to appear legally he cannot contend that he was not appeared before the Trial Court and hence petition under Section 438 of Cr.P.C. is not maintainable.
15. The Apex Court also given interpretation with regard to the custody ang for invoking Section 439 of Cr.P.C., and not for Section 438 of Cr.P.C., and also with regard to the meaning of arrest discussed in Directorate of Enforcement v. Deepak Mahajan and another's case (supra), and not the question of arrest before this Court also. In the case on hand when the private complaint was filed, the learned Magistrate took the cognizance and issued the summons. In pursuance of the said summons he appeared through the Counsel before the Trial Court. Once he had appeared before the Trial Court he cannot seek for an anticipatory bail again invoking under Section 438 of Cr.P.C. This Court in S.R. Nagaraj and K. Somasekhar's case (supra), and also considering the principles laid down in Venkatachalaah's case (supra), 'categorically held that once an advocate appeared through counsel, he cannot seek for an anticipatory bail again. When such being tise interpretation of this Court and also the principle laid down in the judgments referred supra, the petitioner cannot maintain any petition Invoking Section 438 of Cr.P.C. Hence, the petition is liable to be dismissed."
4. Referring the aforesaid, he submits that in case aforesaid, the petitioner appeared after summon was issued and exemption was allowed but thereafter he did not appear before the Court and Non-bailable Warrant was issued and later on, he approached the Court while moving an application under Section 438 of Cr.P.C. and the Court while giving the finding in detail, has rejected the application of the petitioner concerned, on the ground of maintainability.
5. He further argued that so far as the present applicant is concerned, he also moved an application for discharge through counsel before the trial court which was rejected but the fact remains that he appeared before the trial court through his counsel and thus, the issue with respect to his appearance is very well apparent and thus, the ratio of the judgment rendered in the case of Ramesh (supra) would be applicable in the present case also. Thus, submission is that the present application is not maintainable on this ground alone.
6. On the other hand, learned counsel appearing for the applicant has opposed the contentions aforesaid and has drawn attention towards the finding as well as factual matrix of judgment rendered in the Case of Ramesh (supra) and submitted that the factual matrix of the aforesaid judgment is different than the present case. In the abovesaid case, the petitioner concerned, after the summon issued by the trial court, appeared and exemption was granted but thereafter he never appeared and did not cooperate the trial proceedings and therefore, the NBW was issued against him and therefore, the Court after considering all the factual matrix has answered the reference and rejected the application of the above said petitioner on the ground of maintainability, whereas so far as the present case is concerned, the applicant moved a discharge application through counsel after an order was passed in a petition under Section 482 Cr.P.C. by this Court and subsequently, the same was rejected. He added that neither any exemption was granted by the Court nor the discharge application has ever been allowed and after dismissing the discharge application, the applicant has been summoned and therefore, so far as the present case is concerned, it is on different factual matrix than the case of Ramesh (supra). He submits that so far as the exemption under Section 205 of Cr.P.C. is concerned that was granted in the case of Ramesh (supra), whereas in the present case, the discharge application has been rejected and now the summon has been issued, therefore, there is apprehension that the police will arrest him and, therefore, the provision of Section 438 of Cr.P.C. can very well be invoked and the application is maintainable before this Court.
7. Considering the submissions of learned counsel for the parties and after perusal of the record, it transpires that the question which was referred and was answered in the judgment of Ramesh (supra) is on the different factual matrix as in that case the petitioner concerned appeared before the trial court after he was summoned and exemption was granted to him but he never cooperated the proceedings of the trial and, therefore, Non-Bailable Warrant was issued and, thus, looking into the matter that the petitioner once appeared before the Court and was granted exemption, the application under Section 438 of Cr.P.C. was rejected. This Court has also noticed that so far as the present case is concerned, the applicant appeared before the trial court after a liberty was granted that he can appear before the trial court through his counsel and once he appeared and moved an application for discharge, the same was rejected. It is borne out that neither any exemption was granted to the applicant nor his appearance was ever in person before the trial court and, therefore, the factual matrix of the present case cannot be at par to the factual matrix of Ramesh Case. Thus, the ratio of the abovesaid judgment does not apply in the present case. This Court has also noticed that the summon has been issued for the cognizable offence and, therefore, as per the argument of learned counsel for the applicant that there is apprehension of arrest cannot be disbelieved outrightly. Consequently, the preliminary objection raised by the counsel for the State is hereby rejected.
8. The Court is proceeding to hear this matter on merits.
9. It has been contended by learned counsel for the applicant that the matter started when an FIR is lodged on 20th of October, 2004 while alleging that the offence has been committed on 30th of September, 2004 and thereafter the applicant approached this Court and instituted a petition for quashing of the FIR and that was quashed vide order dated dated 27th of October, 2004, thereafter the chargesheet was filed in the year, 2006 which was challenged by moving an application under Section 482 Cr.P.C. wherein the proceeding was stayed. Later on, an application under Section 173(8) Cr.P.C. was moved on 09.01.2013 which was allowed and the Investigating Officer was directed to proceed for further investigation and thereafter final report was submitted on 22nd of August, 2014. Thereafter, the application under Section 482 Cr.P.C. was finally decided, wherein the applicant was given liberty to move discharge application through his counsel which was moved by him and the same was dismissed vide order dated 15.11.2019, which again has been challenged by the applicant while filing a revision which was dismissed by the court of Sessions on 29.01.2024 and thereafter the applicant challenged both the orders passed by the revisional court as well as by the trial court under Section 482 Cr.P.C. which is pending consideration.
10. Learned counsel for the applicant submits that without any cogent piece of evidence, the chargesheet has been filed against the applicant and the fact remains that the person, alleged to have been abducted by the applicant, came to his house on his own after 9 months and added that there is no independent public eye witness of the incident and due to anonymity and under suspicion, the name of the present applicant is planted in the First Information Report and the applicant is suffering since last two decades for his no fault. He next submits that the applicant is of 64 years of age and he is a retired Professor and is a reputed person in the society. He also submits that there is tremendous apprehension that after issuance of summons, the police will arrest him and, therefore, the applicant may be enlarged on anticipatory bail.
11. On the other hand, the learned Counsel for the State has opposed the contentions aforesaid on merits and submits that there is serious allegations against the applicant and chargesheet has also been filed and there is ample evidence against him, therefore, the applicant is not entitled for anticipatory bail. He also added that since 2004, on the either pretext, the applicant is not cooperating with the trial proceedings and, therefore, the present anticipatory bail application may be dismissed.
12. Considering the submissions of learned counsel for the parties and after perusal of the record, this Court finds it a fit case for grant of anticipatory bail.
13. Accordingly, till the next date of listing, the present applicant-Brij Kishore shall be released forthwith in the aforesaid case crime (supra) on an interim anticipatory bail on his furnishing personal bond and two solvent 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 chargesheet 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.
14. List/put up this matter on 13th of November, 2024, as fresh.
15. Let notice be issued to opposite party no. 2.
16. In the meantime, opposite parties shall file counter affidavit. "
4. On the basis of instructions, learned A.G.A. submits that subsequently charge-sheet has already been filed in the matter after statement of applicant was recorded.
5. Considering the aspects already considered in the order dated 24.10.2024 particularly paragraph 9 and 11, the interim anticipatory bail granted earlier to the applicant is made absolute.
6. Upon consideration of submission advanced by learned counsel for the parties and perusal of material on record, prima facie, subject to further evidence being led in trial, it appears that chargesheet has already been filed in the matter. Thus, in view of law laid down by Hon'ble Supreme Court in Sushila Aggarwal Vs. State (NCT of Delhi) and another : (2020) 5 SCC 1, it would be appropriate to grant anticipatory bail to the applicant under Section 438 Cr.P.C./482 BNSS.
7. In view of the above, it is provided that in the event of arrest, the applicant- Brij Kishore shall be released on anticipatory bail in the aforesaid Case Crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned 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 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;
8. Any other reasonable restrictions/ conditions which the trial court may deem fit and proper can be imposed.
9. It is made clear that the observations made in granting anticipatory bail to the applicant shall not in any way affect the trial judge in forming his independent opinion based on the testimony of the witness.
10. The application stands disposed of.
Order Date :- 4.4.2025
Shubhankar
