Anoop Kumar @ Nankau and Another Vs State of U.P Thru. Addl. Chief Secy. Deptt. of Home Civil Secrt. Lko. and Another

Neutral Citation No. - 2024:AHC-LKO:27444

Court No. - 13

Case :- CRIMINAL APPEAL No. - 1770 of 2023

Appellant :- Anoop Kumar @ Nankau And Another Respondent :- State Of U.P Thru. Addl. Chief Secy. Deptt. Of Home Civil Secrt. Lko. And Another Counsel for Appellant :- Bare Lal Bhartiya,Indra Pratap Singh Counsel for Respondent :- G.A.

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Hon'ble Saurabh Lavania,J.

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Heard learned counsel for the appellants, learned counsel for the private respondent/victim as well as learned A.G.A. for the State and perused the record.

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The present appeal has been filed for quashing the impugned order dated 20.03.2023 passed by learned Special Judge, SC/ST Act, Raebareli in Anticipatory Bail Application No.295/2023 arising out of Case Crime No.400/2018 under Sections 376D, 452, 504, 506 I.P.C. and Section 3(2)(v) of SC/ST Act, Police Station- Maharajganj, District- Raebareli.

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Learned counsel for the appellants, who are real brothers, submitted that the appellant has been falsely implicated in the present case. It is stated that a suit for permanent injunction was filed by the appellant against Mahabeer s/o Rameshwar, Shri Krishna @ Barati Lal s/o Mahabeer, Vijay Kamal @ Kolai S/o Shri Krishna, all r/o Anand Nagar, Maharajganj, Pargana, Samrauta, Tehsil- Maharajganj, DistrictRae Bareli. He further submitted that the aforesaid suit is pending as regular suit No.882/2010 and in the aforesaid suit, Anup and Jaideep both s/o Bakelal are the witnesses from the side of plaintiff and on account of pending suit before Civil Judge, Junior Division, Court No.16, Rae Bareli. On 17.07.2017, some quarrel was took place between the husband of the victim of the present case and Jaideep and others, and thereafter, on the written complaint of Jaideep, NCR

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No.129/2017 under Sections 323 and 504 I.P.C., P.S. Maharajganj, District- Rae Bareli was lodged on 17.07.2017. Thereafter, at the behest of Shri Krishna @ Barati Lal, application under Section 156(3) Cr.P.C. was moved by the private respondent on 18.08.2017 and the report was sought from the concerned police station and the police officials categorically informed that no such incident was taken place and no any alleged complaint was made by the victim at the police station. In the present case, the incident is shown of dated 17.07.2017 and the order was passed for lodging of the F.I.R. on 26.09.2017 and in compliance thereof the F.I.R. was lodged on 24.09.2018. All these facts were not considered by the Investigating Officer and charge sheet was submitted merely on the basis of statement of victim recorded under Section 161 as well as 164 Cr.P.C.

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Learned counsel for the appellant also submitted that the appellants co-operated in the investigation as the protection was granted to him by Writ Court in Writ Petition (MB) No.1640/2019, Mata Prasad Vs. State of U.P. and Ors., and thereafter, charge sheet was submitted and the petition was dismissed and the application under Section 438 Cr.P.C. was filed which was dismissed as withdrawn with liberty to take appropriate remedy vide order dated 12.04.2023, thereafter, present appeal was filed and the same is pending since 28.04.2023. He further submitted that the case before the trial Court is malicious one and the appellants have never misused the liberty granted by the Writ Court, therefore, they are entitled to bail.

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The learned counsel for the appellant further submits that coaccused- Mata Prasad has been released on bail by this Court vide order dated 18.01.2024 passed in Criminal Appeal No. 1376 of 2023.

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Learned A.G.A. as well as learned counsel for the private respondent/victim opposed the prayer of appellants and submitted that victim has supported the prosecution version in her statement recorded under Sections 161 as well as 164 Cr.P.C. but they could not dispute

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this aforesaid facts including the facts related to pending suit and that an NCR was also lodged related to the incident dated 17.07.2017 by Jaideep against the husband of the victim of the present case and there is no description about the NCR either in the F.I.R. or in the statement of victim recorded under Section 161 Cr.P.C.

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Considering the submissions of learned counsel for the appellants, learned A.G.A. and going through the contents of appeal, F.I.R., statement of victim as well as NCR, suit in question and judgment of Hon'ble Apex Court in the case of Prithviraj Chauhan Vs. Union of India reported in 2020 SCC OnLine Supreme Court 159 as well as other relevant documents. It is evident that the regular suit impleading Vijay Kamal from the side of the appellants is pending and the husband of the private respondent/victim is working with Vijay Kamal and one NCR was also lodged on 17.07.2017 by Jaideep against the husband of the victim, thereafter, F.I.R. of the case in question was lodged on 24.10.2018 in relation to the alleged incident dated 17.07.2017 and the protection was granted to the appellant by the Writ Court and there is no evidence that the appellant misused the liberty granted by the Writ Court, in such circumstances, this Court is of the view that learned trial court failed to consider the aforesaid aspects, hence, the aforesaid impugned order is liable to be set aside and appellant is entitled to get bail.

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Resultantly, in the above facts and circumstances of the case, the trial of the case is not likely to be concluded in near future, hence, the present appeal has substance, and it is accordingly allowed, and the impugned order dated 20.03.2023 passed by learned Special Judge, SC/ST Act, Raebareli is hereby set aside.

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Let appellants namely Anoop Kumar @ Nankau and Jaideep @ Bambaiya , be released on bail in the aforesaid case crime number on their furnishing personal bond of Rs. 25,000/- and two reliable sureties each of the like amount to the satisfaction of the court concerned

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subject to following additional conditions :-

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(i) The appellants will cooperate with the prosecution during trial. (ii) The appellants will not tamper with the evidence during trial.

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(iii) The appellants will not pressurize/intimidate the prosecution witness(es).

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(iv) The appellants shall not commit an offence.

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(v) The appellants 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 or tamper with the evidence.

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(vi) The appellants shall remain present before the trial court on each date fixed, either personally or through counsel.

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(vii) The appellants will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.

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(viii) The appellants shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

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As this order relates to enlargement of the appellant on bail, it is clarified that observations made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation made in this order.

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Order Date :- 3.4.2024 Mohit Singh/-

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Digitally signed by :- MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench

Anoop Kumar @ Nankau and Another v. State of U.P Thru. Addl. Chief Secy. Deptt. of Home Civil Secrt. Lko. and Another

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Anoop Kumar @ Nankau and Another v. State of U.P Thru. Addl. Chief Secy. Deptt. of Home Civil Secrt. Lko. and Another

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