Allahabad High Court
Umashankar vs State Of U.P. And 2 Others on 18 July, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:142996 Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7096 of 2023 Applicant :- Umashankar Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Anil Kumar Singh Counsel for Opposite Party :- G.A.,Abhishek Kumar Yadav Hon'ble Nalin Kumar Srivastava,J.
1. This application has been moved on behalf of the applicant Umashankar seeking anticipatory bail in Case Crime No. 60 of 2021, under Sections 302, 452, 506, 34 IPC, Police Station Derapur, District Kanpur Dehat.
2. Heard Shri O.P. Singh, learned Senior Counsel assisted by Shri Anil Kumar Singh, learned counsel for the applicant, Shri Abhishek Kumar Yadav, learned counsel for the informant as well as the learned A.G.A. for the State and perused the record.
3. At the outset, a preliminary objection has been raised by the learned counsel for the informant and the learned AGA about maintainability of this anticipatory bail application and it is submitted that the present anticipatory bail application has been filed for the offences under Sections 302, 452, 506, 34 IPC whereas Section 438 (6) CrPC (as applicable in U.P. by way of U.P. Act No. 4 of 2019, Section 2, w.e.f 1.6.2019), provides that :
"(6) Provisions of this section shall not be applicable,
(a) to the offences arising out of-
(i) the Unlawful Activities (Prevention) Act, 1967;
(ii) the Narcotic Drugs and Psychotropic Substances Act, 1985;
(iii) the Official Secret Act, 1923;
(iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
(b) in the offences, in which death sentence can be awarded."
4. It is further submitted that since death sentence can be awarded in an offence punishable under Section 302 IPC, the anticipatory bail application in view of the provisions of Section 438(6) CrPC is not maintainable.
5. Per contra, learned Senior Counsel appearing for the applicant submitted that in such matters the Courts while considering an application for grant of anticipatory bail should examine the materials on record to find out whether prima facie offence under Section 302 IPC is made out or not and if it is not made out, the anticipatory bail application is certainly maintainable in such matters. Reliance has been placed upon a decision of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 CrPC No. 7286 of 2020 (Deshraj Singh vs. State of U.P. and another), decided on 1.11.2022 wherein a coordinate Bench of this Court after analyzing the evidence on record observed that the death of the deceased was homicidal and earlier police, after investigation, finding it a case of suicide submitted final report and hence, anticipatory bail application was heard and was allowed as well. It is further submitted that in the present case the post mortem report reveals that the cause of death of the deceased was asphyxia due to ante mortem hanging. The hyoid bone was found intact. The doctor in his statement given to the Investigating Officer has stated that in the case of suicide, white glistening is found present in the hydroid bone and if someone is hanged, the trachea is broken and white glistening is not found present and hydroid bone is found intact. It is further submitted that in the present case white glistening was found present. It is also submitted that in the hanging position a photograph of the body of the deceased was taken wherein his hands were open and not tied. The factual aspect of the matter has also been elaborated by the learned Senior Counsel to demonstrate the truthfulness of the case.
6. The learned AGA and the learned counsel for the informant vehemently opposing the anticipatory bail application have impressed upon the inquest report wherein it has been mentioned that the police found the body of the deceased hanging in a mango tree with both hands tied from behind with muffler, which was untied by the police and taken into possession. It is further submitted that the informant Smt. Manjulata, who is the wife of the deceased, has stated before the Investigating Officer that her husband Dinesh - deceased was taken by the present applicant and other co-accused persons on 12.1.2021 at 9.30 p.m. by dragging and threatening him for life and in the next morning his dead body was found hanging in a tree. It is vehemently submitted that in this way a cogent and trustworthy last seen evidence is also available against the present applicant and other co-accused persons. It is additionally submitted that process under Section 82 CrPC has also been issued against the applicant under the instructions of the Court concerned and the applicant is not entitled for anticipatory bail on this ground also.
7. Having regard to the entire facts and circumstances of the case and having considered the rival submissions made by the learned counsel for the parties, in my view, prima facie it appears to be a case under Section 302 IPC. Photographs submitted by the applicant is not a part of the case diary. The case of Deshraj Singh (supra) does not make any help to the applicant at this stage, as in the said case a final report was submitted by the Investigating Officer after investigation in the case, which was lodged under Section 302 and 120-B IPC and subsequently on the basis of protest petition, the applicant was summoned but the position in the present case is different. The investigation in the matter is going on and so far ample evidence has been collected by the Investigating Officer in respect of the murder of the deceased in this case. Since the case clearly falls into the category of cases which have been mentioned in Section 438(6) CrPC, (as applicable in U.P. by way of U.P. Act No. 4 of 2019, Section 2, w.e.f 1.6.2019), in my view, the present anticipatory bail application is not maintainable. Hence, without going into the merits of the case, the present anticipatory bail application is rejected.
Order Date :- 18.7.2023 safi