Ashok Kumar Mishra v. State of U.P. and Another

Court No. - 73 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 11924 of 2023 Applicant :- Ashok Kumar Mishra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raj Kumar Tripathi,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Nalin Kumar Srivastava,J.

¶1Supplementary affidavit filed today is taken on record.

¶2This application has been moved on behalf of the applicant Ashok Kumar Mishra seeking anticipatory bail in Case Crime No.195 of 2015, under Sections 147, 148, 149, 323, 506, 452, 392, 307 IPC and 7 Criminal Law Amendment Act, P.S. Khuldabad, District Allahabad.

¶3Heard Shri Kamal Krishna, learned Senior Advocate assisted by Shri R.K. Tripathi, learned counsel for the applicant, learned A.G.A. for the State and perused the record.

¶4It has been submitted by the learned Senior Counsel appearing 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 the informant of the case is not the eye witness of the occurrence and the injured Pushpendra Shukla himself in his statement recorded under Section 161 CrPC has assigned specific role of assault to main accused Tota @ Zulfeqar and no role of firing has been assigned to the present applicant. It is further submitted that the injured of the case is said to have sustained several injuries but as a matter of fact no x-ray has been performed in respect of any injury and there is no any supplementary medical report on record. It is also submitted that main accused Tota @ Zulfeqar has been granted regular bail from the Sessions Court itself. The investigation of the case is going-on and the applicant is cooperating with the same. He has not been declared as proclaimed offender. 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.

¶5Learned A.G.A. has opposed the prayer for anticipatory bail.

¶6I have considered the rival submissions made by the learned counsel for the parties.

¶7In this matter, from the perusal of the record it reveals that about ten miscreants including the present applicant came to the house of the informant for a land dispute and made several round fire upon him with intention to kill and when his younger brother Pushpendra Shukla came out of his house the main accused Tota made a fire upon him on his chest and he was also assaulted with the butt of the rifle and mobile phone was also snatched. F.I.R. was lodged and after investigation charge sheet has been submitted against two accused persons and in respect of the present applicant investigation is going on. It also reveals from the perusal of the record that injured Pushpendra Shukla himself in his statement recorded under Section 161 CrPC has not assigned specific role of assault to the present applicant. The injured of the case is said to have sustained several injuries but no x-ray or supplementary medical report is on record.

¶8In 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, likelihood 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.

¶9In 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.

¶10Considering the settled principles of law regarding anticipatory bail, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on 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) CrPC before the Competent Court.

¶11The application is allowed accordingly.

¶12In 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.

¶13In case of default of any of the conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of protection granted to the applicant. Order Date :- 7.11.2023 safi High Court of Judicature at Allahabad