Court No. - 38
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7872 of 2020 Applicant :- Aniruddha Pandey Opposite Party :- State of U.P.
Counsel for Applicant :- Rajeev Ratan Shukla,Indra Kumar Chaturvedi(Senior Adv.) Counsel for Opposite Party :- G.A.,Neeraj Kumar,Prabhash Pandey with Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7675 of 2020 Applicant :- Prakash Pandey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ravi Kant Shukla,Renu Singh,Vinod Prakash Srivastava (Senior Adv.) Counsel for Opposite Party :- G.A.,Neeraj Kumar,Neeraj Kumar Chaurasia,Prem Shanker Mishra and Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8321 of 2020 Applicant :- Arun Kumar Pandey And 2 Others Opposite Party :- State of U.P.
Counsel for Applicant :- Rajeev Ratan Shukla,Indra Kumar Chaturvedi(Senior Adv.) Counsel for Opposite Party :- G.A.,Neeraj Kumar,Prem Shanker Mishra,P.S.Misra
Hon'ble Saumitra Dayal Singh,J.
1. Three anticipatory bail applications have been filed arising from Case Crime No.79 of 2020 under Sections- 147, 148, 149, 323, 504, 506, 307 and 308 IPC, Police Station-Oonj, District-Bhadohi. Anticipatory Bail application no. 7872 of 2020 has been filed by Aniruddha Pandey; Anticipatory Bail application no.7675 of 2020 has been filed by Prakash Pandey and Anticipatory Bail application no. 8321 of 2020 has been filed by Arun Kumar Pandey, Pratham Pandey & Prashant. All the applicants had been granted interim anticipatory bail by earlier orders passed on their respective applications.
Heard Shri. V.P. Srivastava, Sr. Advocate, Shri. I.K. Chaturvedi, Senior Advocate for the applicants, Mr. Syed Murtaza Ali, learned A.G.A. for the State and learned counsel for the informant.
2. Relevant to the present applications, it may be noted, other than two NCR registered against Arun Kumar Pandey and one each against Aniruddha Pandey and Pratham Pandey, there is no criminal history cited against the applicants. The applicants and the informant party are collaterals and also neighbours. There is also a civil dispute pending between the parties from before - being Original Suit No.56 of 2019 filed by Israji Devi and Santosh Kumar (informant party) against Laldhar Pandey, Karma Devi and Kripa Shankar (applicant party). Santosh Kumar - the plaintiff in the suit is the main injured party in the present case.
3. In that background FIR allegations have emerged describing an incident that took place on 19.07.2020 wherein, according to the FIR, Arun Kumar Pandey and Pratham Pandey assaulted Santosh Kumar with a spade and 'lathi' resulting in head injury suffered by the latter. In support thereof reference has been made to the injury report as also report of the CT-scan disclosing fracture on the parietal bone on the right side and haemorrhage suffered. Other injuries are also claimed to have been suffered by Santosh Kumar and Reshma. However, the injuries of Reshma are minor. In the context of these injuries, the FIR allegations have emerged against all the applicants (except Aniruddha Pandey) as also certain ladies of the house namely Malti Pandey, Gamla Pandey, Rekha Pandey, Sargam & Ankita.
4. It has thus been submitted that a dispute had erupted between the parties, at the spur of the moment over discharge of waste water in a drain. That dispute has been blown out of proportion in the FIR narration only to cause deep harassment and prejudice to the applicants and to force them to withdraw from the civil proceeding. The injury reports are claimed to have been manipulated, in as much as, according to Sri I.K. Chaturvedi, learned Senior Advocate there was no fracture injury noted in the initial report, however, two months after the incident, a fracture injury has been reported in the CT-scan. Such an injury is stated to be wholly manufactured as no fracture injury would have remained unhealed for such a long period of time. In support of their contention that a sudden quarrel had erupted between the parties over a civil dispute, reference has been made to the injuries claimed to have been suffered by Arun Kumar Pandey and Malti Devi (on the applicants' side). In that regard, a complaint is stated to have been lodged by the applicant party wherein, the matter is pending at the stage of recording of statements under Sections-200 & 202 Cr.P.C. Thus, it has also been submitted that there is a cross-version of the incident and at this stage, it cannot be said that it was the applicant party which was the aggressor.
5. In fact, Sri V.P. Srivastava, learned Senior Counsel would submit that the informant party was trying to forcibly dig up a drain in front of the house of the applicants which was naturally resisted by the applicants resulting in them being assaulted by the informant party. In course of such a transaction, injuries were suffered by both sides. The same have been blown out of proportion in the F.I.R. Then, it has been submitted the fact ladies of the house had been falsely implicated itself shows that the intention of the informant party was only to cause deep harassment. Smt. Shyama Devi and other ladies have already been granted anticipatory bail by this Court.
6. Then, learned Senior Counsel submitted that, in any case, without prejudice to the above, the role of assault has been assigned to Arun Kumar Pandey and Pratham Pandey. No allegation was made in the FIR against Aniruddha Pandey. However, he and certain other persons came to be named only at the stage of the statement of the injured witness.
7. Also, Shri. Srivastava has stressed that the applicants were pursuing their legal remedies with diligence and they have not avoided the law. On 19.08.2020 itself, the applicants approached this Court for anticipatory bail. Those applications came to be rejected for reason of this Court having been directly approached. The Court had then left open to the applicants to approach the learned court below. In such circumstances, anticipatory bail applications were filed before the learned court below which came to be rejected by separate orders. At that stage, the applicants again approached this Court by filing the instant anticipatory bail applications wherein, interim protection has been granted to the applicants. Thus, the applicants cannot be categorized as absconders and in any case, they are not disentitled to the discretionary relief, in such facts.
8. The anticipatory bail applications have been vehemently opposed by learned AGA as also by learned counsel for the informant. In the first place, learned AGA would submit that the applications filed by Aniruddha Pandey, Prashant Pandey & Pratham Pandey and Prakash Pandey were rejected by the learned court below on 13.10.2020, 16.10.2020 and 14.10.2020. He would submit that insofar as the occurrence is concerned, there is nothing to doubt the same. Not only the FIR allegations and the statement recorded under Section 161 Cr.P.C. support the F.I.R. allegations but there is also medical evidence as also evidence in the shape of video recording and certain photographs which are all part of the case diary material. They clearly indicate not only the incident had taken place but also that a serious injury has been suffered by Santosh Kumar. Also, it has been submitted that charge sheet has already been prepared and has been sent by the Investigating Officer to the next higher Officer for submission in Court, in due course. Learned AGA would also submit that besides subsequent medical report, there is a CT-scan report of the date of the incident itself, disclosing fracture on the right-side parietal bone, of Santosh Kumar.
9. Learned counsel for the informant have vehemently urged that the applicants do not merit any relief owing to their conduct. In this regard it has been submitted, since 19.07.2020 (when the FIR came to be lodged), the applicants have not cooperated in the investigation and have only been running to the courts for grant of anticipatory bail. A warrant of arrest is also stated to have been issued on 05.10.2020 which has remained unsatisfied. Thus, relying on the decision of the Supreme in the case of Lavesh Vs State (NCT of Delhi) passed in Criminal Appeal No.1331 of 2012, decided on 31.08.2012, it has been submitted that the applicants are clearly not entitled to grant of anticipatory bail, at this stage. Insofar as that submission is concerned, learned both Senior counsel for the applicants would refer to the decision of the Supreme Court in Sushila Aggarwal & Others Vs. State (NCT of Delhi) & Anr.; 2020 CRI.L.J.1590, to submit that the anticipatory bail application is wholly maintainable even upon submission of charge sheet and that merely because a warrant of arrest may have been issued, it would not debar the applicants to the anticipatory bail. To that extent, reference has also been made to a recent decision of the Himachal Pradesh High Court in Mahendra Kumar Vs. State of Himachal Pradesh being Cr. MP(M) No.1682 of 2020 decided on 26.10.2020. It also transpires that insofar as the applicant-Aniruddha Pandey is concerned, he was granted interim anticipatory bail by the learned court below on 30.09.2020. However, his arrest was obtained on 05.10.2020, whereupon in compliance of the order of the interim anticipatory bail, he was released by the police station concerned upon his furnishing the requisite bonds.
10. Having heard learned counsel for the parties and having perused the record, in the first place, following the decision of the Supreme Court in the case of Sushila Aggarwal (supra), there can be no doubt as to the maintainability of the present application notwithstanding issuance of warrant of arrest and notwithstanding the submission of charge sheet by the police. Maintainability of a petition or application and the relief that may be granted thereon are two different issues and the answer to both is/are not necessarily or always common. The decision of the Supreme Court in Sushila Aggarwal (supra) does lay down that an application for grant of Anticipatory bail may lie even after submission of charge sheet. Here these applications were filed before submission of charge sheet. Thus, the applications are found wholly maintainable. There is no conflict in the decisions of the Supreme Court. In Lavesh Kumar (supra) the Supreme Court dealt with and laid down a rule of caution, to be applied by the courts dealing with such applications filed by applicants who had avoided the law.
11. Thus, while all three applications are maintainable, all that is required to be seen is whether in the facts and circumstances of the case, the applicants are entitled to the discretionary relief of anticipatory bail, at this stage. In that regard, in the first place, it may be noted that it is undisputed that the parties are inter-related and that other than one major injury suffered by one of the two persons injured namely, Santosh Kumar, no other person had suffered any significant injury on the informant side. In the context of that injury, the FIR allegation appears to have emerged against nine named persons. As to specific role assigned viz a viz that injury, in addition to the allegation made in the FIR it is also undisputed that the name of Aniruddha Pandey first appeared at the stage of recording of the statement of the injured witness. Further, it is also not in dispute that similar allegations have been made against ladies who have all been granted anticipatory bail. Even, if the submission based on cross case is left aside as that is still pending consideration by the learned Magistrate, it still survives for consideration whether upon such allegations the applicants who are five in numbers are entitled to anticipatory bail.
12. Then, there are specific allegations made against Arun Kumar Pandey and Pratham Pandey of assaulting Santosh Kumar with spade and lathi on his head where the seat of the sole serious injury is located. According to the learned A.G.A. those allegations made in the FIR have been supported during investigation both on the strength of the oral statements as also by the medical report of the date 19.07.2020 itself.
13. Though, Sri Chaturvedi, has laid great stress that the injury claimed by Santosh Kumar is wholly exaggerated, yet, at the same time, keeping in mind the case diary material pointed out by the learned AGA referring to a fracture injury recorded on 19.07.2020 itself, it appears that at this preliminary stage i.e. consideration of anticipatory bail there is less material to doubt the actual occurrence. Whether the applicants were the aggressor or and what exact role had been played by each of the accused persons may remain for further consideration at appropriate stage, however, the role assignment of Arun Kumar Pandey and Pratham Pandey had emerged at the stage of the FIR itself. The fact that there may be one fracture injury to Santosh Kumar may remain a matter to be considered at the subsequent stage including the stage of regular bail. However, without drawing any further conclusion as to the fact occurrence, I am not inclined to exercise the discretionary jurisdiction of this Court to grant anticipatory bail to these two accused persons namely-Arun Kumar Pandey and Pratham Pandey for the reasons noted above. Accordingly, their anticipatory bail applications are rejected, leaving it open to those applicants to apply for regular bail which application when filed may be considered, strictly in accordance with law, without being prejudiced by any observations made in this order.
14. Insofar as remaining applicants namely Aniruddha Pandey, Prakash Pandey and Prashant Pandey are concerned, Aniruddha Pandey was not named in the FIR though five ladies of the house (who have been enlarged on anticipatory bail) came to be named at that stage itself. It is also admitted to the parties that they are related. Even as to the Prashant Pandey and Prakash Pandey, other than the general role assigned of exhortation offered, there is no specific role assigned of having caused grievous or serious hurt. It being undisputed that the parties are related and there was a civil dispute pending, it appears that these three applicants are entitled to exercise of discretion, at this stage in the context of a single serious injury suffered by Santosh Kumar and lack of multiple injuries or injured persons.
15. Another factor that exists in their favour is that charge- sheet has already been prepared and according to the learned AGA, it is in the process of submission before the learned court below. Thus, no investigation is pending at this stage. Besides, the fact that, at present, all the applicants are under interim protection granted by this Court, in absence of any plea set up by the State that the applicants had absconded or had avoided the investigation, it would be too harsh to deprive them of the discretionary relief merely because warrant of arrest may have been issued on 05.10.2020.
16. The decision of the Supreme Court in the case of Lavesh (supra) does not lay down an inflexible rule of law injuncting the courts from granting relief of anticipatory bail where any coercive measure may have been adopted to lesser of greater extent. In fact, the decision appears to be lay down a rule of caution for the courts to apply while granting such relief.
17. In the present case, the applicants had first approached this Court within a month of the incident for grant of anticipatory bail. Those applications came to be rejected whereafter all the applicants approached the learned court below. Those applications were rejected. Then the six lady accused persons, were granted anticipatory bail by this Court. Even Aniruddha Pandey, had been earlier granted interim anticipatory bail, by the learned Court below though later, the same came to be rejected. In absence of any need being cited by the State of custodial investigation, it appears proper that the interim bail granted to these three applicants namely Aniruddha Pandey, Prakash Pandey and Prashant Pandey be confirmed.
15. Accordingly, in the event of arrest of the applicants - Aniruddha Pandey, Prakash Pandey and Prashant Pandey, involved in the aforesaid case crime, they shall be released on anticipatory bail till submission of police report, on their furnishing a personal bond of Rs. 50,000/- each with two sureties of the like amount to the satisfaction of the Station House Officer of the police station concerned on the following conditions:
(i) The applicants shall make themselves available for interrogation by a police officer as and when required and regularly appear before the Court/s on each date of the trial, unless specifically exempted.
(ii) The applicants shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer or tamper with the evidence.
(iii) The applicants shall not leave India without the previous permission of the court.
(iv) In default of any of the conditions mentioned above, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicants.
16. Anticipatory Bail application no. 7872 of 2020 filed by Aniruddha Pandey; Anticipatory Bail application no. 7675 of 2020 filed by Prakash Pandey and Anticipatory Bail application no. 8321 of 2020 filed by Prashant are allowed. As noted above, Anticipatory Bail application no. 8321 of 2020 filed by Arun Kumar Pandey and Pratham Pandey stands rejected.
Order Date :- 6.1.2021 S.Chaurasia