Present application under Section 438 Cr.P.C. has been filed by the accused-applicant seeking bail in anticipation of his imminent arrest in Case Crime No.54 of 2014 under sections 307, 147, 323, 325, 504 IPC, P.S. Kotwali Utraula, District Balrampur.
Vide order dated 02.04.2021, learned court below has rejected the application for anticipatory bail of the applicant.
Learned counsel for the applicants submits that FIR in this case was lodged in the year 2014 under Sections 307, 147, 323, 325, 504, however, after investigation, charge-sheet under Sections 147, 323, 325, 504, 506 of IPC was filed and thereafter, the cognizance was taken by the Magistrate and process was issued against the applicants. It is further submitted that in the year 2017, State has filed an application informing the Court that decision has been taken for further investigation by the State and for that purpose the case diary is required. However, the application of the State was rejected by the Judicial Magistrate and a revision was preferred by the State in the Court of Sessions Judge, Balrampur and the same was partly allowed by the Sessions Judge vide order dated 02.06.2017 by observing that a copy of the case diary could be given to the State/Investigation Officer for the purpose of further investigation.
It is further submitted that the applicants have challenged the order dated 02.06.2017 passed by the Sessions Judge by filing a Criminal Revision No.821 of 2017 before this Hon'ble Court and the order of the Sessions Judge has been stayed by this Hon'ble Court vide order dated 10.08.2017 and the said revision is still pending adjudication before this Hon'ble Court. It is further contended by the learned counsel for the applicants that the additional charge-sheet has been filed against the applicants on 02.03.2021 and therefore the applicants are apprehending their arrest. Learned counsel further submitted that while rejecting the anticipatory bail application of the applicants, the learned court below has not assigned any cogent reasons and has not appreciated the entirety of the matter.
Sri Alok Saran, learned AGA for the State as well as Sri Avanindra Singh Parihar, learned counsel for opposite party no.2 have submitted that the applicants have not obtained bail yet and are misusing the process of law and after further investigation the additional charge-sheet has also been submitted. It has also been submitted that the anticipatory bail application has been filed after the warrants issued against the applicants by the court below. The applicants are not cooperating in the trial. It is further contended that the applicants have the criminal history of three cases and looking to the seriousness of the allegations/crime, which have been committed by the applicants, there are no forceful ground for granting anticipatory bail to the applicants under Section 438 Cr.P.C.
Heard learned counsel for the parties and perused the material on record.
Perusal of the record reveals that non-bailable warrant was issued against the applicants because they were not cooperating in the trial proceedings. The Hon'ble Supreme Court in the case of Lavesh v. State (NCT of Delhi) - (2012) 8 SCC 730 has held as follows:
"10. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail."
In view of the above position of law, if a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as "absconder" he is not entitled to relief of anticipatory bail.
It is also well settled law that while considering the question of grant of anticipatory bail, the Court prima facie has to look into the nature and gravity of the alleged offence and the role of the accused. The Court is also bound down and must look into, while exercising its power to grant bail, the antecedents of the applicant and also the possibility of the applicant fleeing from justice, apart from other factors and parameters in view of the facts of each and every case.
Consequently, looking to the fact that the applicants were not cooperating with the investigation, which led to issuance of NBW against them and even thereafter he did not appear, I do not find it a fit case for grant of anticipatory bail.
The instant anticipatory bail application is accordingly rejected.
It is clarified that whatever is discussed or observed herein above is only a prima facie view of this Court, at this stage, and the same shall not tantamount to any expression or opinion on the merits of the case.
Order Date :- 17.8.2021 VNP/-