Court No. - 38
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8740 of 2021 Applicant :- Veerendra Kumar Tiwari @ Veeru And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Rajiv Lochan Shukla, Sri Vijay Singh Sanger, learned counsel for the informant and learned counsel for the applicants and learned A.G.A. for the State.
2. This anticipatory bail application has been filed on behalf of the applicants - Veerendra Kumar Tiwari, Munna, Smt. Muniya Devi & Dheerendra Tiwari seeking anticipatory bail in Case Crime No.1122 of 2011, under Sections - 498A, 304B I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station - Atta, District - Jalaun, during pendency of trial.
3. Learned counsel for the applicants submits that the present is a case of false prosecution. Relying on the dying declaration recorded on 1.12.2011, it has been submitted that the deceased had specifically ruled out foul play. A reference has also been made to compromise that was attempted to be reached between the parties. Then, it has been submitted that merely because the applicants were required to participate in the proceedings it did not take away the right of the applicants to seek anticipatory bail.
4. The present anticipatory bail application has vehemently opposed by learned counsel for the informant and learned A.G.A.
5. Having heard the submissions made by learned counsel for parties, it is seen that against the summoning order dated 4.8.2016, the applicants had approached this Court in Application U/S 482 No.16698 of 2019, it was disposed of by the following order dated 26.4.2019:-
"Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
This application under Section 482 Cr.P.C., has been filed for quashing the order dated 4.8.2016 passed by Chief Judicial Magistrate, Jalaun, in complaint case no. 2772/2013 and also to quash the order dismissing the revision no. 77/2016 dated 28.2.2019 passed by Additional District and Session Jude, Jalaun, both the orders arising out of F.I.R. No. 1122/2011 dated 14.12.2011, under Sections 498A, 304B I.P.C. and 3/4 D.P. Act, Police Station Aata, District Jalaun.
Upon consideration of the various aspects of this case, at this stage factual appreciation is not possible about the sanctity of the summoning order, however prima facie case is made out and the court below were justified in passing the summoning order, which cannot be interfered at this stage, therefore no interference is required.
Applicants are directed to participate in the proceeding and they may seek their bail/discharge as the case may be by moving appropriate application and in case any such application is moved, the same shall be considered and disposed of expeditiously in accordance with law.
With the aforesaid observation, the instant application is disposed of.
Observation made shall have no bearing on the merit of the case."
6. Thus, at that stage upon challenge raised to the summoning order, the applicants had been directed to participate in the proceedings. It necessarily required the applicants to appear before the learned Court below. Atleast two years have passed and the applicants have yet not appeared before the learned Court below.
7. In view of the above, without adjudicating the issue whether the applicants may or may not have a right to apply for anticipatory bail, the discretion claimed for grant of anticipatory bail is declined owing to the conduct shown by the applicants in not appearing before the learned Court below for atleast two years since dismissal of the aforesaid application U/S 482 on 26.4.2019. The provision of anticipatory bail cannot be allowed to be used only for not appearing before the learned Court below. At present, the assurance given by learned counsel for the applicants that applicants undertake to appear before the learned Court below if granted the protection of anticipatory bail, cannot be entertained owing to the conduct of the applicants as noted above.
8. Accordingly, the present application is rejected.
9. However, it is left open to the applicants to approach the learned Court below with utmost expedience. Subject to the applicants approaching learned Court below within two weeks from today, it is expected that the learned Court below shall proceed to deal with and decide the bail application of the applicants as expeditiously as possible, keeping in mind the entirety of the facts and circumstances pertaining to the dying declaration.
Order Date :- 7.4.2021 A.Dewal