Allowed

Devanand Alias Devanand Mishra v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

Allahabad HC5 Aug 2024/1506/2024

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a second anticipatory bail application filed by Devanand Mishra in a case involving assault on police. The court referred to the Supreme Court judgment of Sushila Aggarwal to grant bail with conditions despite prior rejections and criminal history.

What did the court decide?

Anticipatory bail granted on furnishing personal bond and two sureties with conditions to cooperate with investigation and not leave India.

Devanand Alias Devanand Mishra Vs State of U.P. Thru… — Anticipatory Bail | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:53707

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Court No. - 7

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1506 of 2024

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Applicant :- Devanand Alias Devanand Mishra Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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Counsel for Applicant :- Ankit Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Alok Mathur,J.

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Counter affidavit filed on behalf of the State today in Court is taken on record.

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Heard learned counsel for the applicant, learned A.G.A. for the State of U.P. and perused the material available on record.

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By means of the present second anticipatory bail application, the applicant has prayed that applicant may be enlarged on anticipatory bail in the event of his arrest in FIR dated 18.05.2021 lodged with P.S. Ataria, District Sitapur under Section 147, 148, 307, 332, 353, 336 & 427 IPC and Section 7 of Criminal (Amendment) Act, 2013 which has been registered as FIR No. 0134/2021 during the pendency and till the conclusion of the trial.

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The first anticipatory bail application having been rejected by this Court by means of order dated 06.07.2021 on the ground that petitioner had not approached District Court prior to moving the application before this Court and this Court did not find any extra-ordinary circumstances to entertain the application at the behest of the applicant directly under Section 438 of the Cr.P.C.

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It has been submitted by learned counsel for petitioner that subsequently the petitioner had moved an anticipatory bail

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application before the District Judge which was rejected by means of order dated 29.07.2021 and subsequently the petitioner had approached before Division Bench of this Court by filing writ petition being Writ Petition No. 21396 (MB) of 2021 where by means of order dated 28.09.2021 interim protection was granted to the petitioner during pendency of the investigation.

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It has been submitted by the petitioner that now the investigation has concluded and the charge-sheet has been filed in the Court and consequently by means of present application petitioner has is seeking anticipatory bail. He has also submitted that in the present application fresh cause of action has accrued inasmuch as now his application has been rejected by the District Judge and subsequently a chargesheet has been filed in the Court of competent jurisdiction.

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It has been submitted by learned counsel for petitioner that the applicant is accused in Case Crime No. 0134/2021, under Section 147, 148, 307, 332, 353, 336 & 427 IPC and Section 7 of Criminal (Amendment) Act, 2013, P.S. Ataria, District Sitapur. He further submits that petitioner has criminal history of two cases one in Case Crime No. 291/2018, Under Section 498-A, 323, 504 I.P. R/W 3/4 D. P. Act, P.S. Sadna, District Sitapur in which he has been enlarged on bail and second is Case Crime NO. 75/2021, Under Section 323, 504, 506 r/w Section 3(1) (D), 3(1)(Gh of the SC/ST Act where the petitioner has also been enlarged on bail.

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In the present case though the allegations pertain to assaulting a police team which has gone to arrest the petitioner but it has been submitted that the said FIR has been lodged due to political rivalry. Lastly, it has been submitted that all the other accused has already been enlarged on bail, the bail orders

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have been collectively annexed as Annexure No. 11 to this petition.

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Learned Additional Government Advocate has opposed the prayer for anticipatory bail by filing counter affidavit in pursuance of order of this Court dated 09.07.2024. Learned A.G.A. has annexed statement of various prosecution witnesses, eyewitnesses, memo witness independent witnesses recorded under Section 161 Cr.P.C. along with copies of the charge-sheet, recovery memo and District Crime Record Bureau about criminal history of the accused. However, he could not dispute the aforesaid facts as argued by learned counsel for the applicant.

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After considering the rival submissions this court finds that there is a case registered/about to be registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of Joginder Kumar v. State of Uttar Pradesh, AIR 1994 SC 1349 , the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. Personal liberty is a very precious fundamental rights and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.

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Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, the applicant may be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 . The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.

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The Court has considered the rival submissions and looking into the circumstances as well as annexures which have been annexed with the application for anticipatory bail as well as counter, this Court finds it a fit case to allow the present anticipatory bail application.

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The anticipatory bail application is allowed .

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This Court directs that in the event of arrest, the accused-applicant Devanand alias Devanand Mishra, involved in (FIR No.)/Case Crime No. 0134/2021, shall be released forthwith on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Arresting officer/Investigating Officer/ S.H.O. concerned on the following conditions:-

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(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;

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(ii). That the accused-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 from disclosing such facts to the court or to any police officer; and

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(iii). That the accused-applicant shall not leave India without the previous permission of the Court.

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14.The papers regarding bail submitted to the police officer on behalf of the accused/applicant shall form part of the case diary and would be submitted to the court concerned along with same at the time of submission of report under Section 173 (2) Cr.P.C.

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15.In case there is breach of any of the above conditions or in case it is otherwise found for any other reason the bail is required to be cancelled, it shall be open for the State or the appropriate authority to move application for cancellation of bail in accordance with law.

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(Alok Mathur, J.)

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Order Date :- 5.8.2024 Virendra

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Digitally signed by :- VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

Devanand Alias Devanand Mishra v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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Devanand Alias Devanand Mishra v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko.

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