Allahabad High Court
Bechan Singh vs State Of U.P. And 2 Others on 22 October, 2024
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:167780 Court No. - 65 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 9292 of 2024 Applicant :- Bechan Singh Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Manish Singh,Sushma Singh Counsel for Opposite Party :- G.A. Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard Sri Manish Singh, learned counsel for the applicant, Sri Sunil Kumar, learned A.G.A. for the State and perused the material placed on record.
3. The present application for anticipatory bail has been filed for anticipatory bail in Case Crime No.195 of 2022, under Section 409 IPC, Police Station Lanka, District Varanasi, during the pendency of trial.
4. This is the second anticipatory bail application on behalf of the applicant. The first one was disposed of by this Court vide order dated 13.5.2024 as the counsel for the applicant had prayed that the anticipatory bail application may be dismissed as withdrawn with a direction to file a regular bail application which may be decided keeping in view the guidelines as laid down by the Supreme Court passed in Satender Kumar Antil vs. Central Bureau of Investigation and Another, 2022 SCC OnLine SC 825.
5. The word 'second' has been added subsequently by the counsel for the applicant, although it does not finds mention in the affidavit of the anticipatory bail application also.
ARGUMENTS ON BEHALF OF APPLICANT:
6. The first anticipatory bail application was wrongly withdrawn and the merits and the circumstances of the case categorically indicates that the applicant is entitled for bail.
7. Much reliance has been placed on the judgment of Supreme Court passed in Vinod Kumar Sharma & Anr. vs. State of Uttar Pradesh & Anr., Petition(s) for Special Leave to Appeal (crl.) No.6057 of 2021, which readsasunder:
"Heard Mr. Siddharth Dave, learned senior counsel appearing for the petitioners and Mr. Vinod Diwakar, learned Additional Advocate General for the State of Uttar Pradesh, Mr. Sudhir Naagar, learned counsel for respondent No.2.
Petitioners who are the father-in-law and mother-in-law of the deceased are sought to be prosecuted for the offences under Sections 323, 498A, 304B, IPC read with Section 3 & 4 of the Dowry Prohibition Act. Before the charge sheet was filed, they were granted anticipatory bail by this Court on 07.10.2020. In the said order granting bail, this Court had observed that, after charge sheet is filed, it is open for the petitioners to surrender and apply for the Regular Bail before the Competent Court. After filing the charge sheet, when application for grant of anticipatory bail is filed, impugned order is passed based on the observation made by this Court, in the earlier order.
Merely because it was kept open for the petitioners to surrender and apply for Regular Bail after filing of the charge sheet, the same does not preclude the petitioners to apply for anticipatory bail under Section 438 Cr.P.C. after filing of the charge sheet. It also cannot be said, that same is a second application for grant of anticipatory bail as pleaded by learned counsel appearing for respondents, on the same cause of action.
Further it is also brought to our notice that the husband of the deceased was granted Regular Bail after he was arrested. This Court while issuing notice also granted protection to the petitioners from arrest.
For the aforesaid reasons, we are of the view that it is a fit case for grant of anticipatory bail. The order impugned is set aside.
The special leave petition is disposed of granting anticipatory bail to the petitioners, subject to such conditions, to be imposed by the Trial Court.
Pending application(s) shall also stand disposed of."
8. As per the provisions of Section 438(4) Cr.P.C., there is no bar to file subsequent anticipatory bail as it pertains to his fundamental rights.
9. Much reliance has also been placed on the judgment of Supreme Court passed in Dhanraj Aswani vs. Amar s. Mulchandani & Anr., Criminal Appeal No.2501 of 2024 (arising out of SLP (Crl.) No.6942 of 2024), whereby it was opined that a person who was already in custody can file an anticipatory bail in another case in which he was wanted in, as such, the applicant is entitled for anticipatory bail.
ARGUMENTS ON BEHALF OF STATE/INFORMANT:
10. The anticipatory bail application has been opposed on the ground that there is no provision for filing a second anticipatory bail application in the case, as such, the instant second anticipatory bail application is liable to be rejected.
CONCLUSION:
11. In the judgment of Vinod Kumar Sharma (Supra), the Supreme Court was dealing with the matter of dowry death, in which the anticipatory bail application to the in-laws (father-in-law and mother-in-law) was granted till the submission of report under Section 173(2) Cr.P.C. and the applicants therein were directed to file a regular bail application, if any final report (charge-sheet) is to be filed. The accused persons therein instead preferred an anticipatory bail application, which was rejected on the ground that the earlier order stated that they could apply for regular bail only.
12. The Supreme Court opined that the word 'Bail' includes 'Anticipatory Bail' and the said anticipatory bail is also maintainable after submission of final report (charge-sheet).
13. The question herein is altogether different. The applicant was never granted anticipatory bail rather he had withdrawn his anticipatory bail and the same was disposed of and the applicant was granted liberty to file a regular bail application light of the judgment of the Supreme Court passed in Satender Kumar Antil (Supra).
14. As far as the second judgment referred by the counsel for the applicant is concerned, the Supreme Court inDhanraj Aswani (Supra) was dealing with the question whether a person, while in custody for a particular offence, can have a 'reason to believe' that he may be arrested in relation to some other non-bailable offence. The Supreme Court in that particular case had opined that any person who was already in custody may apply for anticipatory bail in another offence, in which he may be wanted, as such the said judgment does not help the cause of the applicant herein.
15. The moving of second anticipatory bail is but the misuse of the process of Court and even has caused loss of precious time of the Court. The overburdened Courts cannot be taken for granted and the liberty be misused by the erring litigants.
16. This is another attempt by the applicant to take an order from this Court, which tantamounts to forum shopping and is misuse of process of Court.
17. The Supreme Court in the case of Union of India vs. Cipla Limited and Another, (2017) 5 SCC 262 has termed the forum shopping as a disreputable practice.
18. This Act of the applicant needs to be dealt with severely, but this Court is exercising restraint and not imposing any cost on the applicant.
19. After hearing learned counsel for the parties and taking into consideration the aforesaid facts, I do not find it a fit case for grant of anticipatory bail to the applicant. The present anticipatory bail application is hereby found devoid of merits and is accordingly rejected.
20. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of anticipatory bail application and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 22.10.2024 Ravi/-
(Justice Krishan Pahal)