Allowed

Santosh and 3 Others v. State of U.P. Thru. Secy. Home Lko. and Another

Allahabad HC27 Sept 2024/871/2023

Case brief

AI extract

What is this about?

The High Court considered an application for anticipatory bail where the applicant faced arrest despite having regular bail for lesser offenses but a charge sheet filed for aggravated sections. The court held that without a coercive process warrant, the investigating officer lacked authority to arrest, and the earlier interim protection was made absolute, allowing the application.

What did the court decide?

The interim protection granted earlier was made absolute and the anticipatory bail application was allowed.

Santosh and 3 Others Vs State of U.P. Thru. Secy. Home… — Anticipatory Bail | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:67362

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Court No. - 14

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 871 of 2023

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Applicant :- Santosh, Kuldeep, Shyam Shankar and Udairaj Opposite Party :- State Of U.P. Thru. Secy. Home Lko. And Another Counsel for Applicant :- Gaurav Misra Counsel for Opposite Party :- G.A.

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Hon'ble Karunesh Singh Pawar,J.

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1. The applicant has moved the present application under Section 438 of Cr.P.C. praying for grant of anticipatory bail in Case Crime No. 398/2021 with regard to penal Sections 304, 325 I.P.C., Police Station- Patti, District- Pratapgarh.

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2. Case called out. None appears for the applicants. Learned A.G.A. for the State who has filed counter affidavit which is taken on record is present.

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3. This Court while giving interim protection has passed the following order on 12.4.2023:

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"Heard Shri Gaurav Misra, learned counsel for the applicants as well as learned A.G.A. for the State and perused the record. Applicants are apprehending arrest in connection with Case Crime No. 398/2021 with regard to penal Sections 304, 325 I.P.C., Police Station- Patti, DistrictPratapgarh as they were earlier granted regular bail vide order 18.01.2022 and thereafter, on the death of the injured, the charge sheet has been submitted amongst other under Sections 304/325 I.P.C.

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An interesting question has emerged in this case pertaining to the fact that applicants before this Court were arrayed as accused in connection with the Case Crime No. 398/2021 and the first information report was lodged under Sections 147, 148, 149, 307, 308, 323, 354 Kha, 452, 504, 506, 427 and Section 7/8 POCSO Act. The applicants before this Court were named in the F.I.R. and had surrendered before the trial court and the trial court vide order dated 18.01.2022 granted regular bail to the applicants in the above mentioned case for the offences wherein the F.I.R. was lodged. However, during the course of investigation, the charge sheet has been filed only under Section 304, 325 I.P.C. and it is with regard to the submission of charge sheet under Sections 304, 325 I.P.C., the applicants have approached the Court of Sessions Judge for grant of anticipatory bail, but the anticipatory bail application of the applicants were rejected vide order dated 28.02.2023. The question before this Court is when the applicants have been granted bail in the same case crime number in some lesser penal sections and after conclusion of the investigation, the charge sheet has been filed in aggravated penal sections, what course is required to be adopted in this situation?

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Learned counsel for the applicants has placed before this Court an order of the Hon'ble Supreme Court passed in 'Special Leave to Appeal (Crl.) No. 10179 of 2017 of dated 07.05.2018 whereby the Hon'ble Supreme Court has released the accused on bail with regard to the added penal offences i.e., under Section 376 I.P.C., however, this case is a case pertaining to its own facts as the Hon'ble Supreme Court has granted bail after going through the facts of that case and

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therefore, the same is not applicable to the facts of instant case.

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The second case which has been relied on by the learned counsel for the applicants is of a Coordinate Bench of this Court passed on 30.09.2022 in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 9391 of 2022, wherein the issue, which is in question before this Court has been deliberated. The learned Single Judge after deliberating the law as well as the relevant sections i.e., 437 and 438 Cr.P.C. was pleased to enlarge the accused therein on bail pertaining to the added penal sections under which the charge sheet was filed, however, that case was pertaining to the minor penal offences.

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The facts of the instant case are pertaining to the filing of charge sheet in aggravated penal sections. The issue requires to be deliberated in depth, however, in the considered opinion of this Court, the concerned investigating officer after submission of charge sheet and after the release of the applicants on regular bail, however, in lesser penal offences, may not be having any authority to arrest the applicants without obtaining any order from the Court, which has enlarged the accused persons/applicants on bail. In this regard, the provisions as contained under Section 437(5) and 439(2) of the Cr.P.C. may be recalled, whereby the court of Magistrate or the Court of Sessions as well as the High Court has been empowered to arrest and commit an accused to custody who has been released by them on bail or anticipatory bail, as the case may be. Thus, apprehension of the applicants that investigating officer may arrest the applicants without there being any process issued by the trial court is without any basis, however, the matter requires further deliberation and for this purpose, the case may now be listed in the list of fresh cases on 20.04.2023.

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Having regard to the Section 439(2) Cr.P.C., it is provided that the investigating officer or any other police personnel shall not arrest the accused/applicants in the above mentioned case without obtaining any coercive process e.g., warrants etc. from the trial Court.

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List as directed on 20.04.2023 in the list of fresh cases."

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4. It has been submitted on behalf of the State that charge sheet has been filed. There is nothing on record to show that the applicant has not cooperated in the investigation.

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5. Considering the interim protection granted by this court vide order extracted above which does not appear to have been misused by the applicant, provisions of sections 437(5) and 439(2) CrPC as also reasons assigned in the aforesaid order, I am of the opinion that the interim protection granted earlier is liable to be and is hereby made absolute.

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6. The application is allowed accordingly.

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Order Date :- 27.9.2024 kkb/

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

Santosh and 3 Others v. State of U.P. Thru. Secy. Home Lko. and Another

Case brief

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Santosh and 3 Others v. State of U.P. Thru. Secy. Home Lko. and Another

Case brief

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