Allahabad High Court
Kitir Mishra @ Mohan Mishra vs State Of U.P. Thru. Prin. Secy. Home Lko ... on 20 February, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:11318
Court No. - 15
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2546 of 2024
Applicant :- Kitir Mishra @ Mohan Mishra
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko And Another
Counsel for Applicant :- Manoj Kumar Misra
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the material placed on record.
Instant application has been filed with the prayer to enlarge the applicant on anticipatory bail in Case Crime No. 313 of 2023, under Sections 323, 504, 506, 308 IPC, Police Station Khargupur, District Gonda.
The notice has been issued to opposite party no. 2 and as per office report, the same has been served upon opposite party no. 2 through heirs but no one is present on behalf of the complainant/opposite party no. 2.
From perusal of the order sheet, it appears that on 14.11.2024, the following order was passed wherein the present applicant has been granted interim anticipatory bail:-
"Heard learned counsel for the applicant, learned AGA for the State and perused the record.
The instant anticipatory bail application has been filed on behalf of the applicant with the prayer to release him on anticipatory bail in Case Crime No. 313 of 2023, under sections 323,504,506,308 of the IPC, Police Station-Khargupur, District-Gonda.
Contention of learned counsel for the applicant is that the applicant is innocent and has falsely been implicated.He added that the other co-accused namely, Prashant Mishra @ Vikku, has already been granted interim anticipatory bail by this court vide order dated 26-09-2024 passed in Criminal Misc. Anticipatory Bail Application No. 2223 of 2024 and the case of the present applicant is identical to the case of said co-accused, Prashant Mishra @ Vikku. The order dated 26-09-2024 passed in Criminal Misc. Anticipatory Bail Application No. 2223 of 2024, is reproduced hereinunder :-
"The applicant has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in Case Crime No.313/2024, under Sections 323/504/506/308 IPC, P.S. Khargupur, District Gonda.
Heard learned counsel for the applicant and learned A.G.A. for the State as well as Shri Salil Kumar Srivastava, learned counsel for the complainant who has filed vakalatnama which is taken on record.
In the prosecution case, it is alleged that while the complainant was present in the Tiwari Complex, the accused persons due to old enmity by hurling abuses beaten him with lathi, danda, kicks and fists and threatened him to kill.
Learned counsel for the applicant submits that charge sheet in the matter has been filed. He was not arrested during investigation. The injured received simple injuries. He was directed to report the radiologist for expert opinion, however, instead of going to the radiologist, he went to the private doctor who ultimately referred him to Ram Manohar Lohiya Hospital where although fracture is shown on the left zygomatic arch, however, disclaimer has been given that this report is not valid for medico-legal purposes.
It has been further submitted that the prosecution cannot derive any benefit on the basis of the CT-Scan report which is at page no. 42 of the bail application. Even otherwise, there is general role assigned to all three accused persons. The applicant has cooperated in the investigation. He is apprehending arrest as warrant has been issued against the applicant.
Learned counsel for the complainant has opposed the contention and has submitted that there is no apprehension of arrest.
Learned AGA has opposed the bail application submitting that in view of the finding given in the rejection order, only summons have been issued against the applicant.
List on 23.10.2024.
On due consideration to the judgment of the Supreme Court passed in the case of "Mahdoom Bava v. CBI, 2023 SCC OnLine SC 299" and the statement made by learned counsel for the applicant as well as considering the fact that during investigation, the applicant was not arrested; charge sheet in the matter has been filed and the undertaking given on behalf of the applicant that he shall cooperate in the trial, I am of the opinion that the applicant is entitled to be released on anticipatory bail in this case in the light of judgment of Supreme Court in Sushila Aggarwal and others vs. State (NCT of Delhi) and another (2020)5 SCC 1, subject to his cooperation in the trial.
In view of the above, the accused applicant is directed to surrender before trial court within twenty days from today. The accused applicant shall be released on anticipatory bail by the trial court on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the trial Court, 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 the 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;
It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his
independent opinion based on the testimony of the witnesses.
In the meantime, learned AGA as well as learned counsel for the complainant shall file counter affidavit."
Learned counsel for the applicant submitted that the applicant undertakes that he will not abscond from the investigation proceedings and will always cooperate in the same and there is an acute apprehension that the police will arrest the present applicant and as such, submission is that he may be enlarged on anticipatory bail.
On the other hand, learned AGA appearing for the State has opposed the contentions aforesaid and submits that the applicant is not entitled for any relief.
Considering the aforesaid facts and circumstances of the case and after perusal of the record and also taking into consideration the fact that the case of the present applicant is identical to the case of the other co-accused,Prashant Mishra @ Vikku, who has already been granted interim anticipatory bail, this Court finds it a fit case for grant of interim anticipatory bail.
Accordingly, till the next date of listing, the present applicant-Kitir Mishra @ Mohan Mishra, shall be released forthwith, in case of his arrest, in the aforesaid case crime (supra) on an interim anticipatory bail on his furnishing a 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 them 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 applicants 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.
Let notice be issued to opposite party no. 2 returnable at an early date.
Steps be taken within a week.
If the steps are taken, the office shall proceed accordingly.
List/put up this matter in the week commencing 09.12.2024.
In the meantime, learned counsel for the State as well as opposite party no. 2 shall file their counter affidavits."
From perusal of the order dated 14.11.2024, 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 applicant was enlarged on an interim anticipatory bail after thoroughly considering the merits of the case. Chargesheet has been filed in the matter. The learned counsel for the State has also failed to submit any fact that the applicant is 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 applicant, namely, Kitir Mishra @ Mohan Mishra till disposal of the trial subject to 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 the applicant shall appear before the trial court on each date fixed, unless personal presence is exempted; and
(v) that the applicant 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 :- 20.2.2025
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