Court No. - 53
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 18463 of 2021 Applicant :- Rais @ Guddu And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ram Pratap Yadav,Devbratt Yadav Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Heard Sri Ram Pratap Yadav, learned counsel for the applicants and learned A.G.A.
This Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. has been filed by the applicants Rais @ Guddu and another for anticipatory bail in case crime no. 0119 of 2019, under Sections 147, 323, 504, 506, 308, 354 Ka, 336 IPC, Section 3(2), 5 Ka, 3 (1) (da0, 3(1) (dha) of SC/ST Act, Police Station Mubarakpur, district Azamgarh.
Submission of the learned counsel for the applicants is that although applicants have invoked the jurisdiction under Section 482 Cr.P.C. challenging the charge sheet and the cognizance order yet anticipatory bail application can be moved at any stage and same is maintainable. It is also argued that no prima facie case is made out against the applicant. Thus, prayer was made for interim protection.
Learned A.G.A. argued that applicants have invoked the jurisdiction under Section 482 Cr.P.C. after taking cogniance in the charge sheet and specific direction was given to the applicant to appear and surrender before the court below and apply for bail but the applicant did not comply with the order instead moved anticipatory bail application. Thus, referring to annexure no. 5 it was further argued that prayer made for anticipatory bail application cannot be allowed.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record.
It is evident from the record that charge sheet has been submitted in the matter and same was challenged in the Application U/S 482 Cr.P.C. No. 15167 of 2021. This Court finding a prima facie case has refused to grant any relief vide order dated 25.08.2021. Order passed on the aforesaid Application U/S 482 Cr.P.C. is as follows :
"Heard Shri R.P. Yadav, learned counsel for the applicants as well as learned AGA for the State and perused the record.
The instant application has been filed by the applicants with a prayer to quash the entire proceedings of criminal case S.T. No. 172 of 2019, State Vs. Mahboob Alam and others under section 147, 323, 504, 506, 308, 354Ka, 336 IPC and Section 3(2), 5 Ka, 3(1)(da), 3(1) (dha)of SC/ST Act, Police Station Mubarakpur, District Azamgarh, pending in the Court of Additional District Judge, Court No.II (SC/ST) Azamgarh.
The contention of the learned counsel for the applicants is that no offence against the applicants are disclosed and the present prosecution has been instituted with a malafide intention for the purposes of harassment.
Per contra, the learned AGA has contended that from the allegations made in the FIR prima facie offence is made out against the applicants. The innocence of the applicants cannot be adjudged at the pre trial stage. Therefore, the applicants do not deserve any indulgence.
From the perusal of the materials on record and looking into the facts of the case and after considering the arguments made at the bar, it does not appear that no offence has been made out against the applicants.
At the stage of issuing process the court below is not expected to examine and assess in detail the material placed on record, only this has to be seen whether prima facie cognizable offence is disclosed or not. The Apex Court has also laid down the guidelines where the criminal proceedings could be interfered and quashed in exercise of its power by the High Court in the following cases:-(i) R.P. Kapoor Vs. State of Punjab, AIR 1960 S.C. 866, (ii) State of Haryana Vs. Bhajanlal, 1992 SCC (Crl.)426, (iii) State of Bihar Vs. P.P. Sharma, 1992 SCC (Crl.)192 and (iv) Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283.
From the aforesaid decisions the Apex Court has settled the legal position for quashing of the proceedings at the initial stage. The test to be applied by the court is to whether uncontroverted allegation as made prima facie establishes the offence and the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing criminal proceedings to be continue. In S.W. Palankattkar & others Vs. State of Bihar, 2002 (44) ACC 168, it has been held by the Hon'ble Apex Court that quashing of the criminal proceedings is an exception than a rule. The inherent powers of the High Court under Section 482 Cr.P.C itself envisages three circumstances under which the inherent jurisdiction may be exercised:-(i) to give effect an order under the Code, (ii) to prevent abuse of the process of the court ; (iii) to otherwise secure the ends of justice. The power of High Court is very wide but should be exercised very cautiously to do real and substantial justice for which the court alone exists.
The High Court would not embark upon an inquiry as it is the function of the Trial Judge/Court. The interference at the threshold of quashing of the criminal proceedings in case in hand cannot be said to be exceptional as it discloses prima facie commission of an offence. In the result, the prayer for quashing of proceedings is refused. There is no merit in this application filed under Section 482 Cr.P.C. The applicants have ample opportunity to raise all the objections at the appropriate stage.
However, the applicants are directed to appear and surrender before the court below and apply for bail, the prayer for bail shall be considered expeditiously in accordance with law after hearing the Public Prosecutor.
With the aforesaid observations, this application is finally disposed of.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing"
In the aforesaid Application U/S 482 Cr.P.C. specific direction was given to the applicant to surrender before the court concerned and apply for bail. It appears that the applicant did not comply with the order dated 25.08.2021 instead moved anticipatory bail application.
Looking to the conduct of the applicant and nature of gravity of the offence as disclosed in the FIR, the court is of the opinion that anticipatory bail application is not liable to be allowed.
Prayer made in the application is hereby refused. The application is rejected.
Order Date :- 22.12.2021 Sachdeva