Allahabad High Court
Sandeep And 2 Others vs State Of U.P. Thru. Prin. Secy. Home Lko ... on 17 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:10478
Court No. - 15
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2043 of 2024
Applicant :- Sandeep And 2 Others
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko And Another
Counsel for Applicant :- Kailash Nath Mishra,Rahul Mishra
Counsel for Opposite Party :- G.A.,Naveen Kumar Pandey
Hon'ble Shree Prakash Singh,J.
Heard learned Counsel for the applicants, Sri Naveen Kumar Pandey, learned counsel for the complainant and learned Counsel for the State as well as perused the material placed on record.
Instant application has been filed with the prayer to enlarge the applicants on anticipatory bail in S.T. No. 1166 of 2023, NCR No. 87 of 2007, under Section 316 IPC, Police Station Motiganj, District Gonda.
From perusal of the order sheet, it appears that on 09.09.2024, the following order was passed wherein the present applicants have been granted interim anticipatory bail:-
"Heard learned counsel for the applicant and learned A.G.A. for the State.
The present bail application under Section 438 Cr.PC. has been filed seeking anticipatory bail in NCR No. 87/2007, under Sections 316 I.P.C., P.S. Motiganj, District Gonda.
Heard learned counsel for the applicant as well as learned AGA for the State.
Learned AGA at the outset has raised an objection regarding the maintainability of the anticipatory bail application in view of judgement of Karnataka High Court passed in the case of "Ramesh Vs. State Through DY.RFO, Hosur Section, Gauribidanur Range, Chikkaballpura District-562101, Criminal Petition No. 9975/2021".
Learned counsel for the applicant submits that judgment of Ramesh (supra) will not applicable in the facts of the present case. In the judgment of Ramesh (supra), the accused appeared before the trial court through an advocate and also filed an application under Section 205 Cr.P.C. seeking exemption from personal appearance. The application was allowed, still he did not appear and consequently warrants were issued against him. Then it was held that once the accused has appeared through counsel before the court, he cannot seek anticipatory bail. The unprecedented conduct of the applicant was also noted by the Karnataka High Court in the case of Ramesh (supra). This case has peculiar facts. In this case, it is not the case of the prosecution that at any point of time, the applicant has suppressed any fact or has misused the liberty granted by the trial court. Mere appearance before the trial court will not come in the way of entertaining the anticipatory bail application.
On due consideration to the judgment of the Ramesh (supra) as well as considering the fact that the applicant throughout has cooperated in the investigation as well as in the trial, hence, the objection raised by the learned AGA is rejected.
Learned counsel for the applicant submits that initially under Section 323/504/426 IPC was registered against the applicant. Investigation was carried on and charge sheet was filed under those sections and the applicant was granted regular bail. Charges were also framed under those sections.
It has been further submitted that the complainant filed an application under Section 216 Cr.P.C. for altering the charge under Section 316 IPC which was rejected by the learned magistrate and thereafter he filed a revision against the rejection, which was also rejected by the Sessions Judge. Against both the orders, he filed a petition before this Court by filing a petition under Section 482 Cr.P.C. No. 6439/2016 "Ram Prasad Vs. State of U.P. and others". This Court vide order dated 15.05.2017 set aside both the orders dated 10.03.2015 and 29.02.2016 and remanded the matter to the Judicial Magistrate-1st Class, Gonda directing to reconsider the application of the applicant/complainant on the basis of the evidence on record and pass a fresh order. Learned Magistrate, in compliance of the order dated 15.05.2017, after finding prima facie case under Section 316 IPC committed the file to the Court of Sessions vide order dated 01.08.2023 which is on record.
Learned counsel for the applicant further submits that the applicant throughout appeared in the trial; he was enlarged on bail. After committal under Section 316 IPC, when he again put in appearance and prays for exemption of appearance, his application for exemption was rejected vide order dated 14.05.2024 on the ground that the applicant has not been granted bail under Section 316 IPC and summons were issued against him. In consequence thereof, the applicant apprehends his arrest.
It has been further submitted that throughout the applicant has cooperated in the trial. He has participated in the investigation. He was not arrested during investigation. Custodial interrogation is not required. No useful purpose will be served by keeping the applicant behind the bars. Learned counsel for the applicant undertakes that the applicant shall cooperate in the trial.
Learned AGA has opposed the bail application submitting that statement of the doctor corroborates the prosecution case and case under Section 316 IPC is made out.
Issue notice to respondent No. 2.
Steps be taken within a week.
List on 15.10.2024.
Perused the record.
Perusal of the statement of PW-5 Doctor Renuka Mishra prima facie does not attract offence under Section 316 IPC and thus, looking to the fact that throughout during investigation and also during trial, the applicant has cooperated and he further undertakes to cooperate in the trial and also in view of the judgment of "Mahdoom Bava v. CBI, 2023 SCC OnLine SC 299" as well as considering the judgment in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1 and without entering into the merit of the case, as an interim measure, it would be appropriate to grant interim protection to the applicant under Section 438 Cr.P.C.
Till the next date of listing, it is provided that in the event of arrest, the applicant shall be released on bail on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the court concerned with the following conditions:-
(1) The applicant shall cooperate in the trial and he will not influence the witnesses.
(2) The accused-applicant will remain present on each and every date fixed by the trial court.
(3) The applicant shall not leave India without previous permission of the Court.
Learned AGA shall file counter affidavit by the next date of listing."
From perusal of the order dated 09.09.2024, it transpires that State counsel has failed to demonstrate that there is any adversarial fact which are pleaded in the bail application. This Court finds that the applicants were enlarged on an interim anticipatory bail after thoroughly considering the merits of the case. The learned counsel for the State has also failed to submit any fact that the applicants are not cooperating with the investigation proceeding or otherwise any glaring fact which can adversely affect the merit of the case.
In view of the aforesaid, the present anticipatory bail application is hereby allowed while extending anticipatory bail to the applicants, namely, Sandeep, Kuldeep and Ram Dayal @ Bayu till disposal of the trial subject to the following conditions:-
(i) that the applicants shall make themselves available for interrogation by a police officer as and when required;
(ii) that the applicants 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 them from disclosing such facts to the Court or to any police officer or tamper with the evidence;
(iii) that the applicants shall not leave India without the previous permission of the court;
(iv) that the applicants shall appear before the trial court on each date fixed, unless personal presence is exempted; and
(v) that the applicants shall not pressurize/intimidate the prosecution witness.
In case of default, it would be open for the Investigating Agency to move application for vacation of this protection.
Order Date :- 17.2.2025
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