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2014 DIGILAW 409 (CHH)

Vinay Kumar Agrawal v. State of C. G.

2014-11-21

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. Invoking jurisdiction of this court under Section 438 of Cr.P.C., the applicant herein has filed this application for grant of anticipatory bail as he is apprehending his arrest in connection with Crime No. 15/2014 registered at Police Station, Ramkola, District Surajpur, for the offence punishable under Sections 294, 506-B, 323, 325, 336 and 394/34 of IPC. As per prosecution, allegation against the present applicant is that on 21.05.2014 present applicant alongwith other co-accused persons namely Sunil Agrwal and Vijay Thakur is said to have assaulted the complainant Pradeep Awasthy. It is further alleged that during the course of assault, the applicant along with other co-accused persons looted and robbed the complainant of his mobile phone of 'Intex' Company and have also taken with them the key of the Car (TATA Vista) and also' a cash of Rs. 5000/-. 2. Learned counsel appearing for the applicant would submit that construction of road work from Karwas to Bedmi was-awarded to M/s. M.R. Construction Ltd. through its proprietor Sujit Sinha. The said construction work was being given on sub contract to Vinay Agrawal applicant herein and one Pradeep Awasthy complainant herein. It is further case of the applicant that in order to complete that construction work, Shri Pradeep Awasthy complaint herein. It is further-case of the applicant that in order to complete that construction work, Shri Pradeep Awasthy did not have grinding machine, which the present applicant had. The complainant Pradeep Awasthy, without permission had taken the said machine on 21.05.2014 and on account of that there was fight between the applicant. Sunil Agrawal, worker of present applicant herein was also assaulted by the complainant Pradeep Awasthy and at the instance of complainant, crime No. 15/14 has been registered at Odgi outpost on 21.05.2014 at 9:30 p.m. whereas as the instance of present applicant, Crime No. 14/14 has also been registered in the same outpost on the same day at 7:15 p.m. Which were later on transferred to Ramkola police station and registered as same crime numbers. 3. It is further case of the applicant that in the assault made by Pradeep Awasthy, Sunil Agrawal suffered injury due to which he was hospitalized in District Hospital, Surguja, and challan has been filed at the instance of present applicant against Pradeep Awasthy in criminal court for the offences punishable under Sections 294, 506-B and 323 of IPC. 3. It is further case of the applicant that in the assault made by Pradeep Awasthy, Sunil Agrawal suffered injury due to which he was hospitalized in District Hospital, Surguja, and challan has been filed at the instance of present applicant against Pradeep Awasthy in criminal court for the offences punishable under Sections 294, 506-B and 323 of IPC. It was further stated that in the F.I.R. lodged by the Pradeep Awasthy on 21.05.2014, no such report of loot by the present applicant has been mentioned and immediately after a period of four days i.e. on 25.05.2014 case has been improved and report of looting Mobile phone and Rs. 5000/- has been made in order to implicate the present applicant in non-bailable offence registered as other offences are bailable offences. He would further submit that as per statement of Mohd. Asif Mobile phone owned by Pradeep Awasthy was given to him by co-accused Vijay Thakur and in M.Cr.C. No. 3382 of 2014 filed by said Vijay Thakur, statement has been made on behalf of State that Mobile phone of complainant was seized from Mohd. Asif and Vijay Thakur is said to have given the same to Mohd. Asif who stands as prosecution witness, and there is no ingredients for offence under Section 394 of IPC is made out. 4. On the other hand, learned counsel appearing for the State would submit that Sunil Agrawal has already been arrested and investigation is still going on, and therefore, it may not be proper if the present applicant is released on anticipatory bail. It is further submitted that it is the Sunil Agrawal, co-accused, who snatched the Mobile phone from the complainant Pradeep Awasthy and said to have been given to co-accused Vijay Thakur and he has given to witness Mohd. Asif, from whose possession the said Mobile phone was recovered, and as such, the applicant is not entitled to be released on anticipatory bail. 5. Similar set of arguments is also advanced by Shri Sandeep Yadav, learned counsel appearing for the objector and would submit that present applicant is also involved in commission of said offence. 6. I have heard the counsel appearing for the parties. 7. 5. Similar set of arguments is also advanced by Shri Sandeep Yadav, learned counsel appearing for the objector and would submit that present applicant is also involved in commission of said offence. 6. I have heard the counsel appearing for the parties. 7. At this stage, it would be appropriate to notice amendment made in Section 438 of Cr.P.C. which reads as under: "Sub-section (1) of Section 438 has been amended by Cr.P.C. (Amendment) Act 2005 (Act 25 of 2005), by which old sub-section (1) has been substituted by new sub-sections (1), (1A) and (1B). The guiding factors for grant of anticipatory bail have been mentioned in sub-section (1) of Section 438 itself. The Court would grant or refuse anticipatory bail after taking into consideration the following factors, namely:-- (I) the nature and gravity of the accusation; (II) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (III) the possibility of the applicant to flee from justice; and (IV) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested." 8. Their Lordships of Supreme Court in case of Gurbaksh Singh Sibbia & Others Vs. State of Punjab 1980 AIR 1632 laid down the principles for invoking section 438 of Cr.P.C. and held as under: "31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, be made. On the other hand, if it appears likely considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made." 9. Further, the Supreme Court in case of Siddharam Saltingappa Mhetre Vs. State of Maharashtra and Others 2011 (1) SCC 694 has held as under: "112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. State of Maharashtra and Others 2011 (1) SCC 694 has held as under: "112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; 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; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences; v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The case in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; 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; ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 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. 113. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. 113. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by concerned judge, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available." 10. Taking into consideration the fact that there is fight between two parties and first F.I.R. was lodged by co-worker of present applicant Sunil Agrawal at Odgi outpost on 21.05.2014 at 7:15 p.m. and only thereafter, complainant lodged F.I.R. on the same day and same police station at 9:30 pm. i.e. after a delay of 2 hours and 15 minutes that too in said F.I.R. he did not report anything about snatching/looting of Mobile phone by the present applicant and it case of the prosecution as stated in M.Cr.C. No. 3382 of 2014 and affirmed today also by public prosecutor stating that it is the co-accused Sunil Agrawal, who snatched the Mobile phone from the complainant and said to have been given to co-accused Vijay Thakur and he has given it to witness Mohd. Asif and from whose possession the said Mobile phone was recovered and complainant made statement of snatching by the present applicant only after four day i.e. on 25.05.2014 while recording statement under Section 161 of Cr.P.C. and therefore, in the considered opinion of this court, the false implication of the present applicant in non-bailable offences under Section 394 of IPC cannot be ruled out as other offences registered against the applicant are bailable offences. Furthermore, nothing has been brought on record to indicate that applicant has previously been convicted and sentenced to jail for any cognizable offence and has also not brought on record that if anticipatory bail is granted to the applicant, taking advantage of order of anticipatory bail he will flee from justice. 11. Thus, on the basis of foregoing analysis and taking into consideration facts and circumstances of case, and following the ratio laid down by the constitution Bench in Gurbaksh Singh (Supra) & Siddharam Saltingappa Mhetre (Supra) this court is of considered opinion that it is a fit case for grant of anticipatory bail to the applicant. Accordingly, the application is allowed. It is directed that in the event of arrest, the applicant shall be released on bail on furnishing a bond in the sum of Rs. 1,00,000/- with one surety for the like sum to the satisfaction of the officer arresting him and he shall abide by all the following terms and conditions: • That, the accused/applicant shall make themselves available for interrogation before the concerned Investigating Officer as and when required. • 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/her from disclosing such facts to the Court or to any police officer; • That, the accused/applicant shall not act, in any manner, which will be prejudicial to fair and expeditious trial; and • That, the applicant shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial. 12. It is clarified that observation made herein shall not be taken into consideration in other stage of criminal case, as it is only for the purpose of consideration of application for anticipatory bail and criminal case will be decided on its own merits without being influenced by any of the observations made hereinabove. 12. It is clarified that observation made herein shall not be taken into consideration in other stage of criminal case, as it is only for the purpose of consideration of application for anticipatory bail and criminal case will be decided on its own merits without being influenced by any of the observations made hereinabove. Certified copy, as per rules. Application allowed.