Jharkhand High Court
Anil Gope vs The State Of Jharkhand on 23 July, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 7582 of 2020
1. Anil Gope
2. Sonu Gope
3. Jogendra Gope ..... Petitioners
Versus
The State of Jharkhand ..... Opposite Party
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioners : Mr. Pawan Ranjan Khatri, Advocate
For the State : Mr. Suraj Verma, APP
For the Informant : Mr. Nagmani Tiwari, Advocate
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11/ 23.07.2021 Heard through V.C.
2. At the outset, it has been informed that the petitioner
No.3 has been arrested; as such this application is dismissed as
against petitioner No.3.
3. The petitioners are apprehending their arrest in
connection with Bariatu P.S. Case No.11 of 2020, corresponding to
G.R. No. 1420 of 2020, registered for the offence under Sections
341, 323, 379, 504 and 349 of the Indian Penal Code, pending in
the court of learned Judicial Magistrate 1st Class, Ranchi.
4. Learned counsel for the petitioners submits that earlier
anticipatory bail application filed by the petitioners being A.B.A.
No.1550 of 2020 was rejected by this Court vide order dated
17.09.2020. He further submits that in that case it was submitted by
the informant that injury was grievous in nature and on the basis of
that submission, the application for anticipatory bail was rejected.
However, after disposal of the aforesaid anticipatory bail
application the petitioners could lay hand on the injury report given
by the Doctor which was also referred in the case diary at
paragraph No.93; which clearly transpires that the injury was
simple in nature.
He further submits that the only non-bailable charge
which has been incorporated in this case is Section 379; otherwise
rest of the Sections are bailable offence. He lastly submits that they
are ready to abide any conditions imposed by this Court and/or the
learned trial court.
5. Learned APP appearing for the State could not dispute
the fact that the nature of injury was simple and the same has been
recorded at paragraph-93 of the case diary.
6. Learned counsel for the informant vehemently opposed
the prayer for anticipatory bail and submits that petitioners are
having criminal antecedents; as such they should not be allowed
anticipatory bail.
Learned counsel lastly submits that 2nd Anticipatory
Bail Application is not maintainable and relied upon the judgment
delivered in the case of Sushila Aggarwal & Ors. v. State (NCT of
Delhi) & Anr. reported in (2020) 5 SCC 1. He specifically relied
upon Para-75 which reads as under:
"75. For the above reasons, the answer to the first
question in the reference made to this Bench is that
there is no offence, per se, which stands excluded
from the purview of Section 438, except the offences
mentioned in Section 438(4). In other words,
anticipatory bail can be granted, having regard to
all the circumstances, in respect of all offences. At
the same time, if there are indications in any special
law or statute, which exclude relief under Section
438(1) they would have to be duly considered. Also,
whether anticipatory bail should be granted, in the
given facts and circumstances of any case, where the
allegations relating to the commission of offences of
a serious nature, with certain special conditions, is a
matter of discretion to be exercised, having regard
to the nature of the offences, the facts shown, the
background of the applicant, the likelihood of his
fleeing justice (or not fleeing justice), likelihood of
cooperation or non-cooperation with the
investigating agency or police, etc. There can be no
inflexible time-frame for which an order of
anticipatory bail can continue."
7. Having heard learned counsel for the rival parties and
after going through the documents and the averments made in the
respective affidavits and the earlier order dated 17.09.2020 passed
in A.B.A. No. 1550 of 2020 it appears that it was submitted by the
informant that there was nasal bone fracture which is a grievous
injury. However no injury report of the Doctor was produced
during the course of hearing of earlier anticipatory bail application.
It further transpires that in the case diary at paragraph No.93, it has
been stated that the nature of injury is simple. A copy of the injury
report was also sent by the petitioner through e-mail which has
been taken on record. This injury report of the Doctor was not
produced during the course of hearing of earlier anticipatory bail
application which shows that the injury was simple in nature.
8. In the case of Rani Dudeja v. State of Haryana reported
in (2017) 13 SCC 555 the Hon'ble Apex Court has held in Para-3
as under:-
"3. We are afraid, the stand taken by the High
Court cannot be appreciated. The petition was
for anticipatory bail and the one which had
been filed earlier might have been withdrawn
in a given situation, without inviting the Court
to consider the same on merits. On change of
circumstances, when another application
under Section 438 CrPC was filed, the High
Court should have considered the same on
merits. The principle of res judicata could not
have operated in an application for bail."
As stated herein above; the injury report of the Doctor
was not produced during the course of hearing of earlier
anticipatory bail application and also the statement recorded in
Paragraph-93 of the Case Diary that the nature of injury was
simple; this application needs interference due to change of
circumstances.
The judgment relied upon by the petitioner and its
paragraph-75 is on another issue and not on the maintainability of
the second anticipatory bail application; as such the same is not
applicable in the facts and circumstances of this case.
9. In view of the aforesaid discussions and having regard
to the overall facts and circumstances of the case, I am inclined to
allow this anticipatory bail application. The petitioner Nos.1 & 2
namely, Anil Gope and Sonu Gope, are directed to surrender before
the court below within four weeks from today and in the event of
their arrest/surrender, the court below is directed to enlarge them
on bail on furnishing bail bond of Rs.10,000/- (Ten Thousand) each
with two sureties of the like amount each to the satisfaction of
learned Judicial Magistrate 1st Class, Ranchi, in connection with
Bariatu P.S. Case No.11 of 2020, corresponding to G.R. No.1420
of 2020, subject to the conditions as laid down under Section
438(2) of the Code of Criminal Procedure.
Further, the petitioner Nos.1 & 2 are directed to appear
before the learned trial court on each and every date during trial. It
is also ordered that till the time regular trial does not continue due
to present pandemic; the petitioners will report at concerned police
station on every Monday; failing which, the trial court will be at
liberty to cancel their bail.
(Deepak Roshan, J.)
Pramanik/
