Jharkhand High Court
Anil Pandey Alias Anil Kumar Pandey vs The State Of Jharkhand on 25 January, 2017
Equivalent citations: 2017 (3) AJR 779
Author: Anant Bijay Singh
Bench: Anant Bijay Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 2686 of 2016
Anil Pandey @ Anil Kumar Pandey ..... Petitioner
Versus
The State of Jharkhand ..... Opp. Party
WITH
A.B.A. No. 2688 of 2016
Dhananjay Pandey ..... Petitioner
Versus
The State of Jharkhand ..... Opp. Party
WITH
A.B.A. No. 3474 of 2016
Navneet Pandey @ Navneet Kumar Pandey ..... Petitioner
Versus
The State of Jharkhand ..... Opp. Party
WITH
A.B.A. No. 3509 of 2016
1. Munir Alam
2. Birju Prasad Yadav ..... Petitioners
Versus
The State of Jharkhand ..... Opp. Party
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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH
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For the Petitioners : Mr. Indrajit Sinha, Advocate.
Mr. J.S. Tripathi, Advocate.
For the State : A.P.P.
For the Informant : Mr. Amit Kumar, Advocate.
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Reserved on : 19/01/2017 Pronounced on : 25/01/2017
All the four anticipatory bail applications are heard
together, as they arise from the same F.I.R. i.e. Bishrampur
P.S. Case No. 80 of 2015 dated 08.12.2015, registered
under Sections 302, 307, 326 and 34 of the I.P.C. and
Section 27 of the Arms Act, lodged on the basis of
fardbeyan of one Sushil Kumar Pandey recorded by Officer-
in-Charge, Bishrampur P.S. on 08.12.2015 at Tripti Hotel
alleging therein that his brother Sunil Kumar Pandey (since
deceased) alongwith Arbind Pandey, Khurshid Alam,
Baidyanath Ram and others came to the hotel of Upendra
Dubey, which is in the name and style of Tripti Hotel and it
is alleged that the brother of the informant was
campaigning in favour of Babita Devi, wife of Rajendra
Paswan, who was contesting for the post of Mukhiya and
thereafter Rajendra Paswan came there and ordered for tea
and thereafter they were taking tea. It is alleged that
Rajendra Kumar, Baidyanath Ram, Madan Pandey and Sunil
-2-
Pandey were standing outside in eastern side of the hotel
and Ram Shankar Pandey, Arbind Pandey, Khurshid Alam,
Jitendra Kumar Pandey, Rajendra Ram were sitting inside
the hotel and further two unknown persons came there on
a motorcycle and they also ordered for tea. It is alleged
that the aforesaid unknown persons entered into the hotel.
Thereafter, 3-4 persons started having some conversation
with Sunil Pandey. In meanwhile, Rajendra Kumar started
attending telephone call and after 15-20 seconds, the
informant heard gun-shot fire and noticed that Sunil
Pandey has received injuries and has fallen down and the
miscreants fled away from the place of occurrence. On the
basis of aforesaid written report, F.I.R. has been lodged
against two unknown persons.
A.B.A. No. 2686 of 2016 has been filed on behalf of
Anil Pandey on 13.07.2016, A.B.A. No. 2866 of 2016 has
been filed on behalf of Dhananjay Pandey on 13.07.2016.
A.B.A. No. 3474 of 2016 has been filed on behalf of
Navneet Pandey on 01.09.2016 and A.B.A. No. 3509 of
2016 has been filed on behalf of two petitioners namely
Munir Alam and Birju Prasad Yadav on 02.09.2016.
It further appears that A.B.A. No. 2686 of 2016 was
heard on 31.08.2016 and learned APP was directed to
obtain the case diary and interim protection was granted
and matter was directed to be listed on 08.11.2016.
Thereafter, all the aforesaid anticipatory bail applications
were heard on 08.11.2016. Learned APP appeared and filed
counter affidavit. The matter was again adjourned on
10.11.2016. On 10.11.2016, when the case was taken up, learned APP submitted that after filing of the anticipatory bail application, process under Section 82 of the Cr.P.C. has been issued against the petitioners, Anil Pandey @ Anil Kumar Pandey and Dhananjay Pandey on 24.08.2016.
Learned counsel for the petitioners has submitted that he has filed Cr.M.P. No. 2238 of 2016 for Anil Pandey @ Anil Kumar Pandey and Dhananjay Pandey and the case was adjourned to enable learned APP to take instruction whether processes have been issued under Sections 82 / 83 -3- of Cr.P.C. against other petitioners Navneet Pandey, Munir Alam and Birju Prasad Yadav and the cases were directed to be listed on 19.11.2016.
On 19.11.2016, learned counsel for Anil Pandey and Dhananjay Pandey informed that Cr.M.P. No. 2238 of 2016 preferred on behalf of the petitioners has been allowed by a Coordinate Bench of this Court on 18.11.2016 and the process issued under Section 82 / 83 Cr.P.C. have been quashed, so the effect of the order of Hon'ble Supreme Court passed in the case of Lavesh Vrs. State (N.C.T. Of Delhi) reported in (2012) 8 SCC 730, wherein it has been held that if process under Section 82 of the Cr.P.C. has been issued, anticipatory bail application is not maintainable, will not have any legal implication and hence, the anticipatory bail application is maintainable.
Similarly, learned counsel for petitioner Navneet Pandey (in A.B.A. No. 3474 of 2016) and petitioners - Munir Alam and Birju Prasad Yadav (in A.B.A. No. 3509 of 2016) submitted that they had preferred Cr.M.P. No. 2304 of 2016 for quashing the processes issued under Sections 82 / 83 Cr.P.C., which was allowed on 24.11.2016 and the processes under Sections 82 / 83 of Cr.P.C. issued against the petitioners by the learned court below have also been quashed.
Further, on 01.12.2016, all the four bail applications were heard and the learned counsel for the petitioners relied upon the judgments of the Hon'ble Supreme Court rendered in the cases S.R. Bommai Vrs. Union of India reported in (1994) 3 SCC 1 and Shree Chamundi Mopeds Ltd. Vrs. Church of South India Trust Association CSI Cinod Secretariat, Madras reported in (1992) 3 SCC 1.
Paragraph nos. 152 and 153 (V) and (VII) of S.R. Bommai (Supra) deals with summary conclusion of the case wherein the Hon'ble Supreme Court while exercising the power of Judicial review has held as follows:-
Para 152 and 153 (V) and (VII) reads as follows:
(152) The appeals filed against the judgment of the Madhya Pradesh High court have, therefore, to be allowed and the -4- transfer cases challenging the proclamation, have to be dismissed.
(153) V. If the Proclamation issued is held invalid, then notwithstanding the fact that it is approved by both Houses of Parliament, it will be open to the court to restore the status quo ante to the issuance of the Proclamation and hence to restore the Legislative Assembly and the Ministry.
VII. While restoring the status quo ante, it will be open for the court to mould the relief suitably and declare as valid actions taken by the President till that date. It will also be open for Parliament and the Legislature of the State to validate the said actions of the President.
Thereafter, learned APP was directed to give reply in the light of the aforesaid judgments and the records of Cr.M.P. No. 2238 of 2016 and Cr.M.P. No. 2304 of 2016 were called for.
Despite adjournment, learned APP was not in a position to assail the submissions made on behalf of the petitioners relying on the aforesaid judgments, but question of law formulated above will be decided in appropriate case and not in this case.
Further, in the case of petitioners - Anil Pandey and Dhananjay Pandey, it appears that processes were issued on 24.06.2016 by learned K.K. Mishra, learned Judicial Magistrate, 1st Class, Daltonganj (Palamau) and the aforesaid A.B.A. No. 2686 of 2016 and A.B.A. No. 2688 of 2016 were filed on 13.07.2016, but during pendency of the bail application, learned counsel for the petitioners filed Cr.M.P. No. 2238 of 2016 on 23.09.2016 and under order dated 18.11.2016, process under Section 82 Cr.P.C. was set aside and thereafter, the anticipatory bail applications were heard on 19.11.2016.
Learned counsel for the petitioners has submitted that as on the date of final hearing of the bail application the process has been set aside, so in light of the judgment passed in the case of S.R. Bommai (Supra), the anticipatory bail applications are maintainable.
Admittedly, when hearing was done, the process under Section 82 of the Cr.P.C. has already been set aside, -5- so without directing the learned counsel for the petitioners to withdraw this application and to move before the learned Sessions Judge afresh, the matter was heard on merits.
Learned P.C. Tripathi, Senior counsel for the Navneet Pandey (petitioner in A.B.A. No. 3474 of 2016), Munir Alam and Birju Prasad (petitioners in A.B.A. No. 3509 of 2016) has submitted that petitioners are not named in the F.I.R. and they have been falsely implicated in this case on the basis of suspicion and statement of co-accused Abid Alam was recorded under Section 164 of the Cr.P.C. after four months and their names have transpired and they have apprehension of their arrest in this case. So, petitioners deserve the privilege of anticipatory bail.
Learned counsel for the petitioners Anil Pandey and Dhananjay Pandey also submitted that petitioners are not named in the F.I.R. and they have been falsely implicated in this case. It is further submitted that the deceased Sunil Pandey had filed W.P. (PIL) No. 1262 of 2014 before this Hon'ble Court praying therein for a direction on investigation agency like NIA or CBI to investigate the activities of extremists organizations in the State of Jharkhand and also to investigate and identify the individual police officers, who had developed nexus with such organizations. So, in retaliation, Anil Pandey and Dhananjay Pandey have been made accused in this case. Hence, they also deserve the privilege of anticipatory bail.
Counter affidavit has been filed on behalf of State on 12.08.2016, in which it transpired during course of investigation that deceased Sunil Pandey, who is none other than husband of the minor daughter of Anil Pandey was inimical with the petitioner - Anil Pandey and has filed petition under Section 9 of the Hindu Marriage Act, pending before the Principal Judge, Family Court, but Anil Pandey has objected the petition on affidavit denying the marriage of his daughter with the Sunil Pandey. It was further submitted that the deceased Sunil Pandey has criminal antecedent and statement of one Abid Allam was -6- recorded under Section 164 Cr.P.C. before Magistrate on 31.03.2016, where he has named these four petitioners as persons who have intended conspiracy to commit murder of Sunil Pandey.
Taking all these facts and also the statement of Abid Allam recorded under Section 164 of Cr.P.C., custodial interrogation of the petitioners is required. Accordingly, I am not inclined to admit the petitioners on anticipatory bail and all these anticipatory bail applications are rejected.
(Anant Bijay Singh, J.) Sunil/