Dismissed

Gulsher v. State of Up

Allahabad HC17 Sept 2024ABAIL/8891/2024

Case brief

AI extract

What is this about?

The Allahabad High Court dismissed an application for anticipatory bail filed under Section 438 Cr.P.C. The court held that the applicant failed to substantiate the plea of false implication with specific facts. Considering the gravity of the charges and the lack of exceptional circumstances, the court ruled that granting bail would lead to a miscarriage of justice.

What did the court decide?

Application for anticipatory bail dismissed. Bail or other relief is hereby refused.

Gulsher vs State of Up — Anticipatory Bail | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:150816

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Court No. - 73

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Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8891 of 2024

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Applicant :- Gulsher Opposite Party :- State of U.P. Counsel for Applicant :- Deepak Singh Patel,Sarfraj Ahmad Counsel for Opposite Party :- G.A.

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Hon'ble Vikram D. Chauhan,J.

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Heard learned counsel for the applicant and learned A.G.A. for the State.

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This application has been filed by the applicant for granting anticipatory bail in Case Crime No. 32 of 2024, under Sections 147, 148, 149, 341, 323, 504, 506, 307 I.P.C., Police Station Kareli, District Prayagraj.

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It is submitted by learned counsel for the applicant that as per the allegations in the First Information Report it is alleged that the applicant along with other co-accused person have fired, however, no person was injured. Learned counsel for the applicant further submits that applicant has been falsely implicated in the case and in this respect learned counsel for the applicant has drawn attention of this Court to paragraph no. 12 of the affidavit. Paragraph no. 12 of the affidavit is quoted hereinbelow"-

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" 12. That the applicants are wholly innocent person and they have been falsely implicated in the present case due to ulterior motive of first informant as well as village party bandi. "

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Learned A.G.A. opposed the prayer.

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It is to be seen that in the present case as per the First Information Report offence is made out, however, the plea raised by the applicant with regard to false implication is wholly vague in nature. The details of false implication has not been stated.

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A plea of false implication has been raised by the applicant. A plea of false implication is required to be specific and factual foundation of the same is required to be laid down by accused in the pleadings. In Ruli Ram Vs. State of Haryana, (2002) 7 SCC

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691 , it has been observed by the Supreme Court that when a plea of false implication is advanced by the accused, foundation for the same has to be established. Further, in Ram Udgar Singh Vs. State of Bihar, (2004) 10 SCC 443 , the Apex Court has held that foundation has to be laid if a plea of false implication is made. Vague allegations with regard to plea of false implication raised by accused is not permissible under law. The plea of false implication cannot be on the basis of conjectures. In Brahm Swaroop Vs. State of U.P., (2011) 6 SCC 288 , Supreme Court has observed that a party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. In the present case vague and general allegations have been made with regard to plea of false implication. The foundational fact and material particulars are absent. Such plea of false implication is not tenable.

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In Sabita Paul v. State of West Bengal, 2024 INSC 245 , the Supreme Court has held as under :-

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" 6. The concept of anticipatory bail came to be part of the criminal law landscape via the 41st Report of the Law Commission which recommended the inclusion of such a provision, which then stood incorporated in the Code of Criminal Procedure, 1973. Over the years, many judgments of this Court have considered that a Court must weigh while considering an application for anticipatory bail. In Dr. Naresh Kumar Mangla v. Anita Agarwal & Ors1 ., a three-Judge Bench laid down the following factors : "17. The facts which must be borne in mind while considering an application for the grant of anticipatory bail have been elucidated in the decision of this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514] and several other decisions. The factors to be considered include : (SCC pp. 736-37, paras 112-13) "112.

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(i) the nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

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(ii) the antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

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(iii) the possibility of the applicant fleeing from justice;

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(iv) the likelihood of the accused repeating similar or other offences;

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(v) whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting them;

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(vi) the impact of the grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (2021) 15 SCC 777

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(vii) the courts must carefully evaluate the entire material against the accused. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in such cases is a matter of common knowledge and concern;

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(viii) while considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

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(ix) the reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant;

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(x) frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. "

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In Shrikant Upadhyay and others Vs State of Bihar and another, 2024 INSC 202 has observed as under :-

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" 19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance

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between safeguarding individual rights and rotecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome. "

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The power of anticipatory bail is somewhat extraordinary in character and it is to be exercised only in exceptional cases where the person is falsely implicated. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule.

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The court owes duty that justice is done to all the parties (i,e accused, prosecution, informant, complainant and victim). The citizens in terms of constitutional mandate are required to abide by law. Where from the material and allegation against an accused, offence is made out, the accused is required to show exceptional circumstances warranting the protection of liberty. No circumstances have been shown by applicant to demonstrate that personal liberty of accused in the facts and circumstances of the case is required to be protected. In the facts and circumstances of the case, the grant of anticipatory bail would lead to miscarriage of justice.

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The Court is required to exercise jurisdiction of anticipatory bail on sound judicial principles. The court should be slow to grant anticipatory bail to an accused who does not abide by law and commits an offence. In the present case, it is not shown by the applicant that the prosecution or complainant has falsely implicated the applicant. One cannot lose sight of the fact that unwarranted protection to an accused has adverse effect on the peace and tranquillity of society at large and effects maintenance of law and order in the society. The jurisdiction of anticipatory bail permits the accused to be not produced before the ordinary jurisdictional court although ordinary jurisdictional court at grass root level have greater experience and exposure with regard to situation of maintenance of law and order at the local place. The process of anticipatory bail permits consideration of anticipatory bail by Session Court or High Court and not by Magistrate courts. Facts and circumstance of each case is to be examined at the time of consideration of anticipatory bail.

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A perusal of the First Information Report/Complaint and the material available during investigation would show that offence is

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made out against the applicant. It is not a case where no bailable offence is made out against an accused.

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The grant of anticipatory bail to accused in the present case would have adverse impact on protection of rights and interest of the informant/complainant/victim.

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The nature and gravity of offence and the role play by applicant disentitle the applicant to grant of anticipatory bail. Applicant has failed to show that there is harassment, humiliation and unjustified detention of applicant. It is also not shown that there is over implication of the applicant or the applicant has been falsely implicated or there is frivolity in prosecution. A person who has committed an offence is not entitled to grant of discretionary jurisdiction of anticipatory bail unless it is shown that the accused is falsely implicated or is entitled for protection of liberty. A person who has violated the law and has not shown exceptional circumstances is not entitled to the benefit of extraordinary jurisdiction. No extraordinary circumstances have been shown by applicant that refusal to grant anticipatory bail would lead to injustice. Even otherwise, the applicant has failed to demonstrate factors which would entitle the applicant for anticipatory bail.

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In view of the above, the present anticipatory bail application lacks merit and is accordingly dismissed.

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Order Date :- 17.9.2024 VMA

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Digitally signed by :- VISHWA MOHAN ARORA High Court of Judicature at Allahabad

Gulsher v. State of Up

Case brief

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Gulsher v. State of Up

Case brief

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