Court No. - 87
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 14979 of 2021 Applicant :- Anil@ Anil Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Vijay Kumar Dwivedi Counsel for Opposite Party :- G.A.,Abhishek Mishra
Hon'ble Mrs. Sadhna Rani (Thakur),J.
This is anticipatory bail application under Section 438 Cr.P.C. on behalf of Anil @ Anil Kumar.
It is argued that the case under Sections 147, 148, 149 and 302 I.P.C. was registered on the next day of the incident though, the first information report was named but after investigation the Investigating Officer finding no case filed final report against him.
The application under Section 193 Cr.P.C. was given on the basis of which fresh investigation was ordered. Again the final report was filed but when the complainant again moved the application under Section 193 Cr.P.C., the same was rejected by the concerned Court and the accused person was summoned under Section 319 Cr.P.C. This order of summoning under Section 319 Cr.P.C. was challenged before the High Court under Section 482 Cr.P.C. This application was allowed and the order of summoning under Section 319 was set aside and it was ordered that after recording the evidence again the application can be decided by the lower court. After the evidence, the application under Section 319 Cr.P.C. was moved, which was allowed and the present accused was summoned by the lower court against that order the revision in the High Court and then the proceedings in the Supreme Court both were rejected. Then the application for anticipatory bail was filed in the lower court, which has also been rejected. So the prayer for anticipatory bail is made with the prayer that no offence is made out against the applicant. This fact is proved by filing of final report for two times and in the evidence also, his role is only of catching hold of the deceased. There is only one injury of entry and exit of the pellet on the person of the deceased. The P.W.1, the complainant has admitted that he did not see the firing. The main role was attributed to the co-accused, hence the prayer for bail is made.
The bail application has been opposed by the learned counsel for the first informant and has been submitted that the accused is named in the first information report. He has been specifically attributed the role of catching hold of deceased. The final report was filed by the Investigating Officer on the plea of alibi of the accused on the basis of CDR report wherein the presence of the accused was found of the place other than the place of occurrence. The evidence of P.W. 1 and 2 has been recorded in the lower court, who have supported the prosecution case and on the basis of that evidence only, the application under Section 319 Cr.P.C. was allowed and the present accused was summoned to face the trial under Section 302/120B I.P.C. and after this order, present accused has not appeared in the court. The proceeding under Section 82 Cr.P.C. is in progress against him.
Learned A.G.A. argued that the final report was submitted and after that on the basis of evidence on record, the accused has been summoned under Section 319 Cr.P.C. Thus, it cannot be said that legal mind has not been applied in passing the order, hence prayer for rejecting the bail application has been made.
Though, it is true that two times final report was submitted. It is also on record that on the basis of evidence in the Court the application under Section 319 Cr.P.C. was allowed by the lower court and as per that order the present accused has been summoned to face the trial and that order under Section 319 Cr.P.C. is still intact. The revision against the same has also been dismissed by the High Court. The Supreme Court has also rejected the application of the present accused. Admittedly, his application of anticipatory bail has been rejected in the lower court.
From perusal of the record, it is clear that P.W. 1, complainant in his evidence has admitted that he saw the incident of firing in day light and nothing incriminatory has come in the evidence of P.W. 1 and 2. The crime is heinous in nature.
After hearing the learned counsel for the applicant and learned A.G.A. and after perusing the averments made in the present anticipatory bail application as well as in rejection order, this Court is of the opinion that learned counsel for the applicant could not point out any good ground for grant of bail to the applicant.
Accordingly, the anticipatory bail application filed on behalf of the applicant is rejected.
Order Date :- 21.12.2021 gp