Akash Shivhare v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11472 of 2023 Applicant :- Akash Shivhare Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vivek Kumar Yadav Counsel for Opposite Party :- G.A.,Harish Kumar Yadav Hon'ble Nalin Kumar Srivastava,J.

¶1Heard learned counsel for the applicant, learned counsel for the informant, learned A.G.A. for the State and perused the record.

¶2This application has been moved on behalf of the applicant - Akash Shivhare seeking anticipatory bail in Case Crime No. 360 of 2023, under Sections 323, 386, 504, 506, 427 IPC, P.S. Baberu, District Banda.

¶3It reveals from the perusal of the record that gunda tax of Rs. 10,000/- was demanded by the applicant along with his companions from the informant and when same was refused, he was bitterly assaulted with the aid of lathi, danda and iron rod. F.I.R. was lodged on 19.7.2023 and investigation started, which is still going on.

¶4It has been argued by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. It is further submitted that in the F.I.R. itself no independent person is named as the eye witness whereas the occurrence is said to be happened at a public place. The applicant is not named in the FIR. He has no criminal history. It is further submitted that no money has been paid by the informant in the present matter on alleged extortion. The investigation of the case is going-on and the applicant is cooperating with the same. It is also submitted that only simple injuries have been caused to the informant / injured and in the X-Ray no fracture has been found. It has been submitted that in case applicant is granted anticipatory bail, he will not misuse the liberty of bail and will co-operate in the investigation and would obey all conditions of bail. It is further submitted that co-accused Abhishek Kumar has already been granted anticipatory bail by this Court in Cr. Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 10625 of 2023 by order dated 3.10.2023. In case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail.

¶5Learned A.G.A. and learned counsel for the informant opposed the prayer for anticipatory bail.

¶6It reveals from the perusal of the record that applicant is cooperating with the investigation.

¶7In Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has held that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

¶8In Siddharth Vs. State of Uttar Pradesh & Another, (2022) 1 Supreme Court Cases 676, the Hon'ble Apex Court has held that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation, then there is no compulsion on the officer to arrest the accused.

¶9Considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till filing of police report under Section 173(2) Cr.P.C. before the competent Court.

¶10The application is allowed accordingly.

¶11In the event of arrest of the applicant, he shall be released on anticipatory bail on his furnishing a personal bond of Rs.50,000/-with two sureties each in the like amount to the satisfaction of Station House Officer of the police station concerned with the following conditions:-

(i) The applicant shall make himself available for interrogation by a police officer as and when required.

(ii) The applicant 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 office.

(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. Concerned.

¶12In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of interim protection granted to the applicant. Order Date :- 3.11.2023 Fhd High Court of Judicature at Allahabad