Allahabad High Court
Dharm Raj vs State Of U.P. on 18 December, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:198260 Court No. - 72 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 309 of 2024 Applicant :- Dharm Raj Opposite Party :- State of U.P. Counsel for Applicant :- Rakesh Prasad,Sangharsh,Utkarsh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Rakesh Prasad, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This repeat application for anticipatory bail has been filed by applicant-Dharm Raj seeking his enlargement on anticipatory bail in Case Crime No. 68 of 2021 under Sections 147, 323, 504, 506, 307, 386, 452 I.P.C., Police Station-Meja, District-Prayagraj, during the pendency of trial.,
4. First application for anticipatory bail filed by applicant was rejected by this Court by an order dated 04.02.2022 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 18927 of 2021 (Dharamraj Vs. State of U.P. and another). For ready reference, the order dated 04.02.2022 is reproduced herein under:
"1. Heard Mr. Sanjay Kumar Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ramesh Chandra Yadav, the learned counsel representing first informant/opposite party-2, who are connected virtually.
2. Perused the record.
3. This application for anticipatory bail has been filed by applicant-Dharmraj in connection with Case Crime No. 68 of 2021, under sections 147, 323,504, 506, 307, 386, 452, 324 I.P.C., P.S.-Meja, District-Prayagraj.
4.. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant/opposite party-2, upon perusal of record, the nature of the offence, accusation made, complicity of the accused and judgement of the Apex Court in P. Chidambaram Vs. Directorate of Enforcement, AIR 2019 SC 4198, this Court does not find any exceptional circumstance warranting interference under Section 438 Cr.P.C..
5. Accordingly, present application for anticipatory bail is rejected.
Order Date :- 4.2.2022 "
5. Learned A.G.A. submits that charge sheet has been submitted against applicant on 17.12.2024 before court below.
6. Learned counsel for applicant submits that though applicant is a named as well as charge sheeted accused yet the benefit of anticipatory bail is liable to be extended by this Court in his favour. According to the learned counsel for applicant similarly situate and circumstanced co-accused Onkar Nath has been granted the benefit of anticipatory bail by this Court vide order dated 16.10.2023 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 10299 of 2023 (Onkar Nath Vs. State of U.P.). For ready reference, the order dated 16.10.2023 is extracted herein-below:
"1. Heard Mr. Rakesh Prasad, learned counsel for the applicant and learned Additional Government Advocate for the State.
2. This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.68 of 2021, under Sections 147, 323, 504, 506, 307, 386, 452 IPC, Police Station Meja, District Prayagraj.
3. Learned counsel for the applicant submits that applicant has been falsely implicated in the present case just to harass the applicant in fact no such incident has taken place as alleged in the impugned FIR. The applicant has never committed any offence as alleged in the impugned FIR. It is a cross case. In the alleged incident, both side have sustained injures for which applicant side has also lodged the FIR against the informant side. All the injuries are simple in nature. He further submits that earlier the nephew of the applicant had filed PIL No.837 of 2021 before this Court against the informant for removing illegal encroachment over public utility land, which was disposed of vide order dated 15.06.2021 directing the tehsil authority to remove the illegal encroachment over the land in dipsute. Due to this reason, the informant and his family members assaulted the nephew of the applicant. He further submits that the applicant is having previous criminal history of some cases which has been mentioned in paragraph 19 of the affidavit. He further submits that applicant has apprehension of imminent arrest and in case, the applicant is released on anticipatory bail, he will not misuse the liberty and would co-operate with the trial.
4. Learned A.G.A. has vehemently opposed the prayer for anticipatory bail of the applicant but could not dispute the aforesaid contentions raised by learned counsel for the applicant.
5. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, he is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
6. In the event of arrest, the applicant shall be released on anticipatory bail. Let the applicant-Onkar Nath, involved in the aforesaid case crime be released on anticipatory bail till conclusion of trial on furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
(i) The applicant shall co-operate with the Investigating Officer during investigation and shall report to the Investigating Officer as and when required for the purpose of conducting investigation.
(ii) 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.
(iii) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.
(iv) The applicant shall surrender his passport, if any, to the concerned Court forthwith. His passport will remain in custody of the concerned Court.
(v) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
(vi) In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.
(vii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against his in accordance with law.
7. In default or misuse of any of the conditions, the Public Prosecutor/ Investigating Officer/ first informant-complainant is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
8. With the aforesaid observations/ directions, the application is disposed of.
Order Date :- 16.10.2023 "
6. On the above premise, the learned counsel for applicant contends that case of present applicant is similar and identical to that of aforementioned co-accused, in whose favour the benefit of anticipatory bail has already been extended by this Court. He also contends that there is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from the aforementioned co-accused so as to deny him the benefit of anticipatory bail. He therefore submits that in view of above and for the facts and reasons recorded in the order dated 16.10.2023 referred to above, the benefit of anticipatory bail is also liable to be extended in favour of applicant. According to the learned counsel for applicant, the F.I.R. giving rise to present criminal proceedings was lodged on 20.02.2021. However, the charge sheet/police report in terms of Section 173 (2) C.P.C. has been submitted by the Investigating Officer on 17.12.2024. No attempt was made by the Investigating Officer to arrest the applicant during the pendency of investigation as applicant had duly co-operated with the investigation. On the above conspectus, it is thus urged by the learned counsel for applicant that no such ground has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. According to the learned counsel for applicant, the arrest of applicant is not a pre-requisite for conducting the trial of applicant.
6. Even otherwise, applicant has criminal history of seven cases but the same have been duly explained in paragraph 23 of the affidavit filed in support of this application for anticipatory bail. On the above premise, the learned counsel for applicant submits that interest of justice shall better be served in case the benefit of anticipatory is also extended by this Court in favour of present applicant. In case, the applicant is granted the benefit of anticipatory bail, he shall not misuse the liberty of anticipatory bail and shall co-operate with the trial.
7. Per contra, the learned A.G.A. has vehemently opposed the present repeat application for anticipatory bail. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
8. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant and coupled with the fact similarly situate and circumstanced co-accused Onkar Nath has already been granted the benefit of anticipatory bail by this Court, the learned A.G.A. could not point out any such distinguishing feature in the case of present applicant from aforementioned co-accused so as to deny him the benefit of anticipatory bail, in view of above and for the facts and reasons recorded in the bail order of co-accused Onkar Nath, applicant is also liable to be extended the benefit of anticipatory bail, explained criminal history of applicant, the police report (charge sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalised, yet in spite of above, no such incriminating circumstance could be pointed out by learned the A.G.A. from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 6), applicant has duly co-operated during course of investigation, therefore, no coercive process was obtained by the Investigating Officer to secure arrest of applicant during the course of investigation, therefore, irrespective of the objections raised by learned A.G.A. in opposition to present repeat application for anticipatory bail but without expressing any opinion on the merits of the case, liberty of applicants is liable to be protected. This application for anticipatory bail is therefore liable to be allowed.
9. As a result, the present application for anticipatory bail is allowed.
10. In view of above, in the event of arrest, applicant-Dharm Raj shall be released on anticipatory bail in Case Crime No. 68 of 2021 under Sections 147, 323, 504, 506, 307, 386, 452 I.P.C., Police Station-Meja, District-Prayagraj on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of concerned 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 them from disclosing such facts to the Court;
(ii) The applicant shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. concerned.
(iii). In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
Order Date :- 18.12.2024 YK