Allahabad High Court
Brijesh Singh And 2 Others vs State Of U.P. Threu. Prin. Secy. Home ... on 2 November, 2022
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1836 of 2022 Applicant :- Brijesh Singh And 2 Others Opposite Party :- State Of U.P. Threu. Prin. Secy. Home Dept. Lko. Counsel for Applicant :- Anand Kumar Yadav,Rakesh Kumar Upadhyaya Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
On the matter being take up, Mr. Ajmal Khan, learned Advocate has filed his vakalatnama on behalf of the informant of this case, Smt. Badama Singh which is taken on record.
Heard learned counsel for the applicants, learned Additional Government Advocate for the State of U.P., learned counsel appearing on behalf of the informant and perused the record.
This Criminal Misc. Anticipatory Bail Application under section 438 Cr.P.C. has been moved by the applicants after rejecting their anticipatory bail application by the order dated 23.09.2022 passed by learned Sessions Judge, Ambedkar Nagar seeking Anticipatory Bail in Case Crime No. 192 of 2021, under sections 147, 148, 323, 504, 506, 325, 307 IPC, police station Ahirauli, district Ambedkar Nagar.
As per the prosecution case, FIR of the informant Smt. Badama Singh was registered on 12.08.2021 through an application under Section 156(3) Cr.P.C. dated 05.08.2021 with regard to an incident which took place on 09.07.2021 against five accused persons namely Brijesh Singh (applicant no. 1), Ankit Singh (applicant no. 2), Anshu Singh (applicant no. 3), Surjeet Singh @ Sonu Singh and Harshvardhan Singh for the alleged offence under Sections 147, 148, 323, 504, 506, 325, 307 IPC making allegation inter-alia that on the exhortation of Brijesh Singh and Surjeet Singh, other accused persons namely Ankit Singh and Anshu Singh fired at her brother-in-law Sangeet Singh and in the said incident, Brijesh Singh has also received injuries because he caught hold Sangeet Singh.
It is argued by the learned counsel for the applicant that in this case, after culmination of the investigation, final report dated 15.10.2021 was submitted in favour of the applicants and other co-accused persons but later on, on the protest filed by the informant, the said final report was rejected and the applicants and other co-accused persons were summoned to face trial vide order dated 02.04.2022. It is also submitted that from the side of applicants, an FIR was also lodged on 12.07.2021 for the offence under Sections 504, 304, 34 IPC against Omprakash Singh, Sangeet Singh, Kavi Singh and Vipin Singh in which charge-sheet has been submitted against them. Much emphasis has been given by contending that the impugned FIR dated 12.08.2021 is nothing but a counterblast version of the FIR dated 12.07.2021 lodged from the side of the applicants. Applicants have no criminal history to their credit. Pursuant to F.I.R. of this case, the applicants have apprehension of imminent arrest. Lastly, it is submitted that in case, applicants are granted anticipatory bail, they would not misuse the liberty and will co-operate with the investigation of this case.
Learned Additional Government Advocate for the State of U.P., who has accepted notice of this case on 19.10.2022 as well as learned counsel appearing on behalf of informant opposed the prayer for granting anticipatory bail to the applicants by contending that regarding the incident dated 09.07.2021, informant-Smt. Badama Singh immediately approached to police to get her FIR lodged but the same was not registered by the police, therefore, she had no option left except to move an application under Section 156(3) Cr.P.C. Thereafter, her FIR was registered on 12.08.2021. They also pointed out that in this case, Sangeet Singh has received injuries which corroborates the prosecution case. As on date there is no material on record to presume the false implication of the applicants. Investigation of this case is going on. Considering the prosecution case, offence is made out against the applicants.
Having heard the learned counsel for the parties, I find that both sides have lodged FIRs against each other, as noted above. So far as the submission of final report pursuant to FIR dated 12.08.2021 of Smt. Badama Singh is concerned, the said final report has been cancelled by the concerned court below on the ground that proper investigation was not conducted. In the protest application, it is stated by the informant that the investigating officer, in order to extend undue benefit to the accused persons, got the second statement of the informant recorded in the case diary behind her back. The accused persons have been summoned to face trial. I also find that two injuries were found on the body of injured Sangeet Singh.
Object of section 438 of the Code of Criminal Procedure, is that a person should not be unnecessarily harassed or humiliated in order to satisfy personal vendetta or grudge of complainant or any other person operating the things directly or from behind the curtains. It is well settled that discretionary power conferred by the legislature on this court can-not be put in a straitjacket formula, but such discretionary power either grant or refusal of anticipatory bail has to be exercised carefully in appropriate cases with circumspection on the basis of the available material after evaluating the facts of the particular case and considering other relevant factors (nature and gravity of accusation, role attributed to accused, conduct of accused, criminal antecedents, possibility of the applicant to flee from Justice , apprehension of tampering of the witnesses or threat to the complainant, impact of grant of anticipatory bail in investigation, trial or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.
In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties, taking into consideration the role assigned to the applicants as per prosecution case, gravity and nature of accusation as well as reasons mentioned above, this court is of the view that no case for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of applicants.
Accordingly this application under section 438 Cr.P.C. is rejected.
It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case. The investigating officer of this case shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials / evidences on record.
Order Date :- 2.11.2022 saurabh