Court No. - 67
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 14080 of 2021
Applicant :- Virama Singh Yadav And 8 Other
Opposite Party :- State of U.P. Counsel for Applicant :- A.Z.Khan Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
(1) Heard Shri A.Z. Khan, learned counsel for the applicants and learned A.G.A. Perused the record.
(2) The instant application is being moved by the applicants namely, Vikrama Singh Yadav, Bindar Yadav, Suneel Yadav, Sanjeev Yadav, Durgesh Yadav, Jogindar Yadav, Brijesh Yadav, Satendar Yadav and Manoj Yadav invoking the powers of Section 438 Cr.P.C. apprehending their arrest in connection with Case Crime no.154 of 2021, under Sections 147, 336, 323, 504 I.P.C. and under Section 3(1)(Da) and 3(1)(Gha) of Schedule Caste/Schedule Tribes (Prevention of Attrocities) Act 1989 (Amendment 2015), Police Station-Gehmar, District-Ghazipur.
(3) From the record it is evident that the applicants have approached this Court straightaway without getting their anticipatory bail rejected from the Court of Session. Reason assigned in paragraph-6 of the applicant applicants' excuse for this byepass.
(4) Learned counsel for the applicants has drawn attention of the Court to Clause-7 of Section 438 Cr.P.C. (U.P. Act No.4 of 2021), which read thus :
"(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."
(5) After interpreting the aforesaid clause, it is clear that the Legislature in its own wisdom bestowed two avenues upon the accused with a rider that if the accused has chosen to come to the High Court straightaway, then he would not be relegated back to exhaust his remedy before the Court of Session first. In this regard, learned counsel for the applicant/applicants has placed reliance upon the Full Bench judgment of this Court in the case of Ankit Bharti and others Vs. State of U.P. and another, 2020(3) ADJ 575 in which the Bench has directed to spell out the extraordinary and special reasons for coming to the High Court. After perusal of those pleadings/reasons in this regard, this Court is satisfied that the reasons mentioned therein are quite convincing to entertain the present anticipatory bail application before this Court itself.
(6) Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A. as per Section 438(3) Cr.P.C. (U.P. Amendment) is not required.
(7) It has been contended by the learned counsel for the applicants that the applicants have got no criminal antecedents and they have not undergone any imprisonment after conviction by any court of law in relation to any cognizable offence previously. An assurance was also advanced by learned counsel for the applicants on behalf of the applicants that they would render all requisite co-operation and assistance in the process of law and with the investigating agency and shall not create any hindrance to reach to its logical conclusion and shall not flee away from the course of justice. Learned counsel for applicants has produced a judgment of Hon'ble Supreme Court in the case of Prithvi Raj Vs. Union of India reported in (2020) 4 SCC727 to butress his contention in which it has been mentioned that if the complainant does not make out a prima facie case of the applicability of the provisions of the Act of 1989. The bar is related to Section 18 and 18 (A-2) of the SC/ST Act shall not apply. Learned counsel for applicants has drawn the attention of the Court that in the FIR, nine persons including applicant have been named as accused persons. They have attributed a general role of jointly assault upon the opposite party with Lathi and Danda. It is further mentioned in the FIR that while assaulting they have heard the filthy abuses and in this process they have assaulted.
(8) Learned counsel for the applicants has strenuously argued that the applicants have been made target just to besmirch their reputation and belittle him in the public estimate by the informant. Number of arguments were advanced by learned counsel for the applicants to demonstrate the falsity of the accusation made in the FIR against the applicants by the informant. Learned counsel for the applicants has also relied upon the judgements in the cases of Arnesh Kumar vs State of Bihar and another, (2014) 8 SCC 273; Joginder Kumar vs State of U.P. and others (1994) 4 SCC 260 and Sanaul Haque vs State of U.P. and another, 2008 Cri. LJ 1998, to buttress his contentions.
(9) In this backdrop of legal proposition, learned counsel for the applicants has submitted that the instant FIR and NCR was lodged on 09.06.2021 against the applicant no.3 Sunil Yadav. It seems that there is free fight between two groups, in which five persons have sustained injuries. Learned counsel for the applicant submitted that the tone, tenure and texture of the prosecution, the applicant has made out the case of interfence of this Court under Section 438 Cr.P.C. Learned counsel for the applicant further submitted that the present case is lodged under Section 3(1)(Da) and 3(1)(Gha) of Schedule Caste/Schedule Tribes (Prevention of Attrocities) Act 1989 (Amendment 2015) by the informant alleging that he was beaten by all the accused persons with Lathi and Danda while attending a marriage ceremony.
(10) Per contra, learned A.G.A. has vehemently opposed the anticipatory bail application by mentioning that though the applicants have got no criminal antecedents but there is nothing on record to satisfy that the police personnel are after the applicants to arrest them. The alleged apprehension on behalf of applicants is imaginary and unfounded one. Learned A.G.A. has also submitted that in view of the seriousness of the allegations made in the F.I.R., the applicants are not entitled for any relaxation from this Court. Learned AGA has reaile a preliminary objection with regard to maintainability of present application in the light of Section 18 (A-2) of the SC/ST Act which puts specific embargo against Section 438 Cr.P.C. Learned AGA has pointed out that in the transactions of fighting, five persons were got injured but all the injuries are simple in nature.
(11) After considering the record of the case as available before the Court, in the light of rival submissions made at the Bar and keeping in view the nature and gravity of the accusation, antecedents of the applicants, their undertaking to make themselves available to the authorities whenever required, the Court feels satisfied that it would be expedient to grant an order of interim bail in favour of the applicants.
(12) Without expressing any opinion upon ultimate merits of the case either ways which may be adversely affect the investigation and subsequent stage of the case, the Court directs that in the event of arrest of the applicants in aforesaid case crime, they shall be released on bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Arresting Officer with the conditions that :
(i) The applicants shall make themselves available for the interrogation by the police as and when required. The Investigating Officer of the case would give 48 hours prior notice or telephonically inform the concerned accused-applicant to remain available to him for the purposes of interrogation and the accused-applicants are obliged to abide by such directions.
(ii) The applicants shall not directly or indirectly make any inducement, threats or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.
(iii) The Investigating Officer of the case would make all necessary endeavour to gear up the investigation in utmost transparent and professional way and would try to conclude the same within a maximum period of 90 days. During this period the accused-applicants would not leave the State of Uttar Pradesh without informing the Investigating Officer of the case and sharing his contact number.
(iv) In the event the applicants are having their passports, they will have to surrender the same before the concerned SP/SSP of the District till the submission of report u/s 173(2) Cr.P.C.
(13) In the event, the applicants breach or attempt to breach any of the aforesaid conditions or wilfully violate above conditions or abstains themselves from the investigation, it would be open for the Investigating Officer or the concerned authority to apply before the court of Session for cancellation of bail and the Court of Session has every liberty and freedom to revoke the anticipatory bail after recording the reasons for the same.
(14) While entertaining the instant anticipatory bail application before this Court, there is no concrete material on record except the canvassed apprehension of the applicants on their arrest and the severity of accusation made in the FIR against them. After being satisfied on the limited material, the interest/liberty of the applicants is protected by this Court with aforesaid riders during the course of investigation, after recording its nascent satisfaction. However, continuance of instant interim protection or ultimate fate of instant application would be decided, subject to the counter affidavit filed by learned A.G.A. and the material brought on record against the applicants during the investigation.
(15) Learned A.G.A. should file counter affidavit soon after submission of report under section 173(2) Cr.P.C. or 90 days, whichever is earlier.
(16) Life of the instant protection would continue till the submission of charge sheet or 90 days, whichever is earlier.
(17) List this anticipatory bail application after two months before appropriate Court.
Order Date :- 30.7.2021 Ashish Pd.
Digitally signed by Justice Rahul Chaturvedi Date: 2021.07.31 15:40:05 IST Reason: Document Owner Location: High Court of Judicature at Allahabad