Umesh Kumar Gaur @ Umesh Gaur and 3 Others Vs State of U.P. Thru. Prin. Secy. Home

Neutral Citation No. - 2024:AHC-LKO:10449

Court No. - 15

Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 187 of 2024

Applicant :- Umesh Kumar Gaur @ Umesh Gaur And 3 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Counsel for Applicant :- Diwakar Pratap Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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Learned A.G.A. informs that he has procured complete instructions in the matter including up-to-date case diary and charge sheet has also been submitted.

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Heard learned counsel for the applicants as well as learned A.G.A. for the State and perused the record.

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The instant application has been moved by the applicants- Umesh Kumar Gaur @ Umesh Gaur, Rajesh Gaur, Mukesh Kumar Gaur and Durgesh Kumar Gaur in Crime No. 261 of 2021, under Sections 147, 323, 504, 506, 452, 354-kha, 427 and 392 I.P.C., Police Station Haiderganj, District Ayodhya, with the prayer to enlarge them on anticipatory bail, as they are apprehending arrest in the above-mentioned case.

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Learned counsel for the applicants while pressing the anticipatory bail application submits that it is a case of false implication and on the basis of established previous enmity/ ranjis , the instant F.I.R. has been lodged by moving an application under Section 156(3) Cr.P.C. and the allegations stated therein have been aggravated with the help of a legal professional.

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It is further submitted that the falsity of the incident is evident from the fact that none of the person from the side of the informant including the victim has sustained any injury which itself demonstrates that a false case has been cooked up against the applicant.

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It is further submitted that during the course of investigation the applicants were not arrested and probably they will given the benefit of Section 41-A of the Cr.P.C. However, the charge sheet has been submitted by the investigating officer under Sections 147, 504, 506, 323, 452, 354-B and 427 I.P.C. against the instant applicants. However, the Magistrate concerned at the

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time of taking cognizance has also taken cognizance under Section 392 I.P.C. by passing a lengthy order of date 03.02.2023, which was challenged by the applicants before this Court by filing Application U/s 482 Cr.P.C. No. 11549 of 2023 and the same was disposed of vide order dated 28.11.2023 with a direction that if the applicants surrender before the trial court within the stipulated time mentioned therein, their bail application would be decided in view of the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 and the applicants have moved an application for bail without surrendering themselves before the trial court and the same has been dismissed/rejected on the ground that in compliance of the order of a co-ordinate Bench of this Court dated 28.11.2023 the applicants have not surrendered. Thereafter the applicants moved the Sessions Judge, Faizabad by moving an application under Section 438 Cr.P.C. and the same has also been rejected vide order dated 18.12.2023 on the same ground that in pursuance of the order of a co-ordinate Bench of this Court, the applicants have not submitted themselves to the custody of the Court.

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It is vehemently submitted that even if a direction has been given to surrender before the trial court and to move an application for bail, the same also includes an application under Section 438 Cr.P.C. as an application under Section 438 Cr.P.C. is also for getting bail, however, the same is with regard to the pre-arrest bail. Reference in this regard has been taken of an order passed by the Hon'ble Supreme Court in S.L.P (Criminal) No. 6057 of 2021 (Vinod Kumar Sharma and another vs. State of U.P. and another), wherein it is opined that merely because it was kept open for the petitioners (accused persons) to surrender/apply for regular bail after filing of the charge sheet, the same does not preclude the petitioners to apply for anticipatory bail under Section 438 Cr.P.C. even after filing of the charge sheet. It is further opined that it also cannot be said that the same (anticipatory bail) application is a second application for grant of anticipatory bail, as pleaded by learned counsel appearing for the respondents, on the same cause of action.

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It is next submitted that the trial court on both occasions while adjudicating the plea of regular bail of the applicants without surrendering and at the time of adjudicating his plea for anticipatory bail has not considered this aspect of the matter, which has been clarified by the Hon'ble Supreme Court in the above-mentioned case.

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It is further submitted that when the charge sheet has been

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submitted by the investigating officer after making thorough investigation, there was no occasion for the Magistrate to have altered the penal sections stated in the charge sheet moreso when there was no additional material available with him as the irregularity, if any, committed by the investigating officer, may be taken care of at an appropriate stage i.e. under Section 319 Cr.P.C. or at the stage of framing of charge under Sections 239, 245 and 227 of the Cr.P.C.

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It is also submitted that applicants are ready to cooperate in the trial and since they have not been arrested by the investigating officer during the course of investigation, their confinement in the prison only for the purpose of obtaining regular bail from the trial court would also not only injure their reputation but also would curtail their personal liberty. They are not having any criminal history and there is no apprehension that after being released on anticipatory bail, he may flee from the course of law or may otherwise misuse the liberty.

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Learned A.G.A., however, opposes the prayer of anticipatory bail of the applicant on the ground that the applicant has committed an heinous offence and, therefore, he is not entitled to be released on anticipatory bail.

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Having regard to the aforesaid law referred herein-before of the Hon'ble Supreme Court, there cannot be any doubt that even if no specific direction has been given to an accused person to appear before the trial court and moves an application for anticipatory bail, he may move an anticipatory bail as the anticipatory bail application is also a bail and the only difference of it with Section 439 Cr.P.C. is that it is a pre-arrest bail.

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Hon'ble Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and others : (2021) 10 SCC 773 while dealing with the cases placed in Category 'A' has also clarified that an accused of the offences mentioned therein can move an application for regular bail without surrendering himself to the custody of the Court. Thus, the Sessions Judge, Faizabad appears to have taken a hyper technical view while rejecting the anticipatory bail application of the applicant.

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Coming to the merits of the case, it appears to be an admitted situation that the F.I.R. of this case has been lodged by moving an application under Section 156(3) Cr.P.C. and the defence of the applicant is, that the allegations mentioned therein has been aggravated with the help of a legal professional. It is also the defence that the investigating officer after thorough investigation (even after recording additional

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statement of the victim) has submitted charge sheet under Sections 147, 504, 506, 323, 452, 354-B and 427 I.P.C. but the Magistrate concern without there being any opportunity or occasion has taken the cognizance under Section 392 I.P.C. also ignoring the additional statement of the victim. Admittedly the applicants are not having any criminal history. They are not arrested during the course of investigation and the charge sheet has been filed without making arrest of him.

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Thus, Having regard to the above factual matrix and reasons as well as the law laid down by the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra : (2011) 1 SCC 694, Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1 as well as Gurbaksh Singh Sibbia vs. State of Punjab; (1980) 2 SCC 655 and in Nathu Singh Vs. State of U.P. and others :(2021)6 SCC 64, the facility of anticipatory bail may safely be extended to the applicant.

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In result, the instant anticipatory bail application moved by the applicants- Umesh Kumar Gaur @ Umesh Gaur, Rajesh Gaur, Mukesh Kumar Gaur and Durgesh Kumar Gaur is allowed and it is provided that in the event of arrest of the applicants under any process of the trial court or on their appearance before trial court within 20 days from today i.e. till 25.02.2024, whichever is earlier, they shall be released forthwith on anticipatory bail on their furnishing a personal bond of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the S.H.O. concerned/Investigating/Arresting officer/Trial Court, subject to the following conditions:

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(i). The applicants if not arrested earlier, shall surrender before the trial court within 20 days from today and will cooperate in the trial.

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(ii). The applicants shall Cooperate in the investigation and will make themselves available as and when required by the Investigating officer of the case, even for the recovery of any fact, in case of further investigation.

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(iii). The applicants shall not make any attempt to influence the prosecution witnesses and will also not commit any crime during his release on anticipatory bail.

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(iv). The applicants shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and specially when the prosecution witnesses are present in court.

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(v). The applicants shall remain present, in person, before the

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trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.

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If in the opinion of the trial court default of any of the condition placed above is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and shall proceed against him in accordance with law.

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It is clarified that all the observations contained in this order are only for disposal of this anticipatory bail application and shall not affect the trial proceedings in any manner.

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Order Date :- 5.2.2024 Praveen

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

Umesh Kumar Gaur @ Umesh Gaur and 3 Others v. State of U.P. Thru. Prin. Secy. Home

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Umesh Kumar Gaur @ Umesh Gaur and 3 Others v. State of U.P. Thru. Prin. Secy. Home

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