Court No. - 75
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 18877 of 2021 Applicant :- Chaudhary Ashlam Sher Opposite Party :- State of U.P.
Counsel for Applicant :- Gulab Chandra,Rupesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Ram Krishna Gautam,J.
Heard over anticipatory bail application, under Section 438 Cr.P.C., moved by the applicant-Chaudhary Ashlam Sher, in Case Crime No. 419 of 2014, under Sections-307 I.P.C. & Section 7 of Criminal Law Amendment Act,, Police Station-Nawabad, District-Jhansi.
Shri O.P. Singh, learned Senior Advocate, assisted by Shri Kamal Kishore, learned counsel for the applicant argued that in this very case crime number the accused applicant was named and was assigned role of giving exhortation; giving of fire arm shot has been assigned to some other accused person but, investigation resulted charge sheet against Raju Nai alone, while his trial was going on, statements were got recorded and on the basis of above statements an application under Section 319 Cr.P.C. was filed; application under Section 67-B was decided by the trial Court, vide order dated 01.02.2021, wherein, the applicant was summoned for offences punishable under Section 307 I.P.C. read with Section 7 of Criminal Law Amendment Act, and in above summoning order, there is apprehension of arrest of applicant by the police, hence anticipatory bail was moved before the Court of Sessions, where it was rejected; hence this application for anticipatory bail with above prayer.
Learned AGA has vehemently opposed with this contention that there is a process of summoning by the Court and the applicant is to appear before the Court concerned; apprehension of arrest by Police is not there, sofar as bail is concerned, the role assigned to the applicant is of giving exhortation and giving fire arm shot has been assigned to other accused person, hence the Sessions Court is to decide the regular bail under above circumstances and the bail is to be decided in view of law laid down by this Court in case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC), Lal Kamlendra Pratap Singh Vs. State of U.P.
Having heard and gone through the material placed on record, it is apparent that in trial, in Sessions Trial No. 7 of 2015, accused Raju Nai was being tried and in the same Sessions trial No. 7 of 2015, this summoning order under Section 319 of Cr.P.C. was made on 01.02.2021 and the trial was not discontinued with a view to summon the accused under Section 319 Cr.p.C. rather had proceeded and got decided, it is apparently, a summoning under 319 Cr.P.C. for a trial de novo i.e. evidence on the basis of which the summoning was made under Section 319 Cr.P.C. was of Sessions trial No. 7 of 2015 and this was decided finally, hence, this summoning entails trial de nono, accordingly, the above procedure was apparently erroneous. However, the role assigned to the applicant is of exhortation, wherein, the role of giving fire arm short is not for applicant, and merely role of exhortation is there, hence this fact is to be taken by the Court concerned, while disposing of the regular bail application, if any, and the regular bail application is to be disposed of strictly in accordance with the law laid down by this Court in case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC), Lal Kamlendra Pratap Singh Vs. State of U.P.
With the aforesaid observations this anticipatory bail application is finally disposed of.
However, in case, applicant approaches before the trial court with bail application, same shall be considered and decided in accordance with law cited as above as well as in strict adherence of provision of Section 41 Cr.P.C.
Order Date :- 17.12.2021 Deepak/