Allahabad High Court
Bhoop Sing And 2 Others vs State Of U.P. And Another on 17 May, 2022
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 80 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 2302 of 2022 Applicant :- Bhoop Singh And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A.,Vidya Shanker Pandey Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned Additional Government Advocate representing the State and perused the record of the case. None appears on behalf of the first informant.
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 21.1.2022 passed by the learned Sessions Judge, Sambhal at Chandausi, seeking Anticipatory Bail in Case Crime No. 697 of 2017, under Sections 147, 324 and 308 IPC, police station Chandausi, district Sambhal during the pendency of trial.
The emanation of facts giving rise to the present application are that a first information report was lodged by Sita Ram, the first informant of the case against Bhoop Singh, Bijendra, Netra Pal, Shishu Pal and Saroj on 09.12.2017 inter alia with the allegations that on 06.12.2017 at about 4.00 PM, when his mother and sister were working in his field, accused named above came there and started disturbing the enclosure of his field by spade. On his resistance, Bhoop Singh, armed with rod, Bijendra carrying spade and Saroj having Darati attacked and injured them by spade and Darati. On their shrieks, Maan Singh and Chandra Pal, who were working in their field rushed there and saved them. The report further alleges that Radhey Shyam, brother of the complainant called the police by dialing 100, who rushed to the spot and took the injured for medical examination, whereas his brother Maan Singh and Radhey Shyam are hospitalized in Government Hospital, Moradabad.
Injured Man Singh, Radhey Shyam, Smt. Birwati, Sita Ram and Balkishan have been examined at district hospital, Moradabad on 06.12.2017.
Injured Maan Singh has received the following injuries:
1. "Incised wound 5 cm x 2 cm muscle deep 6 cm f/n right ear.
2. Abrasion 2 cm over right side of chest"
The injured was referred for CT Scan. In CT scan of head it was revealed that soft tissue swelling over the scalp of hemorrhagic attenuation seen posteriorly.
Injured Radhey Shyam has received incised wound 4 cm long, 1 cm deep and 1 cm broad on index finger bone.
Injured Birwati and Bal Kishan have only complain of pain.
Injured Sita Ram has received lacerated wound of 1 cm depth on the left side of temporal.
Statements of the complainant and other injured witnesses were also recorded during the course of investigation, who supported the prosecution case.
After culmination of investigation, the investigation officer has submitted charge sheet against the named accused persons including the applicants on 20.1.2018, on which the Magistrate concerned took cognizance of the offence on 30.3.2018.
Cross report of the offence was also filed from the side of the applicants on the basis of an application under Section 156(3) Cr.P.C. by applicant No. 1 Bhoop Singh on 15.12.2017 against Bal Kishan, Sita Ram, Radhey Shyam and Maan Singh that they assaulted the applicants and others with lathi and danda and also snatched silver ornaments and mobile phone. After the order of the Magistrate, the first information report was lodged against Bal Kishan, Sita Ram, Radhey Shyam and Maan Singh at case crime No. 177 of 2018, under Sections 392, 323 and 427 IPC, police station Chandausi, district Bhim Nagar.
Injured from the side of the applicants namely Shishupal, Bhoop Singh, Netrapal, Ameshwari and Rajbala have been examined at the district hospital, Moradabad on 06.12.2017.
Injured Netra Pal has received lacerated wound 2 cm skin deep on the right side of arm and injured Rajbal has received one lacerated wound of 1 cm on temporal, whereas injured Shishupal, Bhoop Singh, Smt. Ameshwari have only made complaint of pain.
However, after the investigation, the investigation officer has submitted charge sheet No. 133 of 2018 on 31.3.2018 against Bal Kishan, Sita Ram, Radhey Shyam and Maan Singh only under Section 323 IPC, on which the Magistrate took cognizance on 31.7.2018.
Learned counsel for the applicants has submitted that there are cross report of the offence and both sides have lodged the FIRs and received injuries and are facing trial. Learned counsel for the applicants further submits that during the course of investigation, compliance of Section 41A of the Code of Criminal Procedure was made by the applicants and cooperated with the investigation. It is also submitted by the learned counsel for the applicants that similarly placed co-accused Smt. Saroj has been granted anticipatory bail by the Coordinate Bench of this Court vide order dated 17.12.2021 in Criminal Misc. Anticipatory Bail Application Under Section 438 Cr.P.C. No. 19137 of 2021 and on the ground of parity the applicants are also entitled to be granted anticipatory bail. Lastly, it is submitted that applicants have apprehension of imminent arrest and in case, applicants are released on anticipatory bail, they will not misuse the liberty and would cooperate with the trial.
Learned Additional Government Advocate, who has accepted notice of this case on behalf of State has opposed the prayer for granting anticipatory bail to the applicants. It is further submitted by the learned Additional Government Advocate that in this case charge sheet has already been submitted on 20.1.2018 against the applicants on which the learned Magistrate took cognizance on 30.3.2018. He also submits that summons were issued to the applicants on several dates and since the applicants did not appear pursuant to the summons issued to them, on 09.09.2021 bailable warrant was issued. He also contended that since the applicants did not care about the orders issuing bailable warrant, the Chief Judicial Magistrate vide order dated 13.12.2021 issued non-bailable warrants against the applicants, which are operating till date. Learned Additional Government Advocate submitted that the order dated 13.12.2021 passed by the learned Chief Judicial Magistrate issuing non-bailable warrant against the applicants was not brought to the knowledge of the Coordinate Bench of this Court while passing the order dated 17.12.2021 granting anticipatory bail to the applicant-Smt. Sanoj.
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 with the evidence or threat to the complainant, impact of grant of anticipatory bail in investigation or society, etc.) with meticulous precision maintaining balance between the conflicting interest, namely, sanctity of individual liberty and interest of society.
I have gone through the record of the case. Perusal of the record shows that in the cross case lodged from the side of the applicants, charge sheet has been submitted against the complainant and others only under Section 323 I.P.C. I find that in spite of the orders of the Trial Court issuing non-bailable warrants against the applicants, the applicants did not have any respect to the orders of the trial court and kept on avoiding the process. I also find that the issuance of non-bailable warrants against the applicants vide order dated 13.12.2021 was also not brought to the knowledge of the Coordinate Bench of this Court while passing the order dated 17.12.2021 granting anticipatory bail to the co-accused Smt. Saroj as is evident from the perusal of the order dated 17.12.2021 itself in which it has been observed by the Court that "it was also stated that on 09.09.2021 only bailable warrants have been issued against the applicants."
In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties as mentioned above, taking into consideration the role assigned to the applicants as per prosecution case, gravity and nature of accusation, as well as conduct of the applicants in not appearing before the trial court in spite of issuing several non-bailable warrants, 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 anything observed in this order at this stage is limited to the extent of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case.
Order Date :- 17.5.2022 Ishrat