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2023 DIGILAW 1156 (ALL)

Alok Kumar Mishra v. State of U. P.

2023-04-26

KRISHAN PAHAL

body2023
JUDGMENT Krishan Pahal, J. Heard Sri Zafar Abbas and Sushil Kumar Tewari, learned counsels for the applicant and Sri Deepak Kumar Srivastava and Sri Mukesh Joshi, learned counsels for the informant as well as Sri V.K.S. Parmar, learned A.G.A. for the State and also perused the record. 2. The present anticipatory bail application has been filed on behalf of the applicant in F.I.R./Case Crime No. 1277 of 2020, under Sections 354, 354B, 323, 504, 506 IPC, Police Station Majhola, District Moradabad, with a prayer to enlarge him on anticipatory bail. Prosecution Story: 3. As per prosecution story, on 07.10.2020 at about 5.30 pm, the daughter of the informant had gone to see the water in the overhead tank of the house. Seeing her alone, the applicant Alok Kumar Mishra is stated to have outraged her modesty. On hearing her shrieks, the informant and her son came to the scene of occurrence. On seeing them, the applicant is stated to have called his wife and a friend at the scene of occurrence, and assaulted the informant and her son Prakhar Gupta. The applicant is stated to have also outraged the modesty of the informant and torn her clothes. The said incident has been video-recorded in the CCTV camera and the mobile. Arguments for the Applicant: 4. Learned counsel for the applicant has stated that he is maliciously being prosecuted in the present case due to ulterior motive. The applicant has nothing to do with the said offence as alleged by the prosecution. Learned counsel has further stated that the FIR is delayed by about eleven days and there is no explanation of the said delay caused. Learned counsel has further stated that the applicant has genuine apprehension of arrest, as the police is continuously raiding his house. It is also stated by learned counsel that prior to the present anticipatory bail application, the applicant had also filed an Criminal Misc Anticipatory Bail Application under Section 438 CR.P.C. No. 1018 of 2021 and he was granted anticipatory bail till the submission of police report under Section 173(2) Cr.P.C. vide order dated 19.2.2021. 5. It is also stated by learned counsel that prior to the present anticipatory bail application, the applicant had also filed an Criminal Misc Anticipatory Bail Application under Section 438 CR.P.C. No. 1018 of 2021 and he was granted anticipatory bail till the submission of police report under Section 173(2) Cr.P.C. vide order dated 19.2.2021. 5. Learned counsel has further stated that after the filing of the final report (charge sheet) by the investigating officer, the applicant filed another Criminal Misc Anticipatory Bail Application under Section 438 CR.P.C. No. 4588 of 2022 and the applicant was granted fifteen days' time to get the non-bailable warrants issued against him cancelled vide order dated 13.6.2022 and the anticipatory bail application was disposed of. Learned counsel has stated that the non-bailable warrants issued against the applicant were cancelled by the C.J.M. Moradabad vide order dated 17.6.2022. Thereupon, the applicant moved the third anticipatory bail application No. 5746 of 2022, which was also finally disposed of by this Court vide order dated 1.7.2022 thereby granting fifteen days' time to the applicant to appear before the trial court and it was directed that the bail application of the applicant shall be considered and decided in view of the law laid down in Satender Kumar Antil v. Central Bureau of Investigation and another 2022 SCC Online SC 825 and Puran Singh and others v. State of U.P. and others 2016 (95) ACC 950 vide order dated 1.7.2022. 6. In compliance of the order dated 1.7.2022 the applicant moved an application for regular bail as well as for interim bail before the Additional Chief Judicial Magistrate, Court No. 4, Moradabad, on 12.7.2022. Learned A.C.J.M. had declined to hear the regular bail application of the applicant without taking the applicant into custody vide order dated 14.7.2020 and had rejected the interim bail application of the applicant. Learned Court has opined that although in the present matter, the sentence is below seven years but seeing the peculiar facts of the case that the offence is against women, it does not come within the category of normal crime and is serious in nature. As such, the bail application cannot be disposed of without taking the applicant in judicial custody. 7. Learned counsel has also stated that the Apex Court has not classified the cases on the basis of gender in the judgement of Satender Kumar Antil (supra). As such, the bail application cannot be disposed of without taking the applicant in judicial custody. 7. Learned counsel has also stated that the Apex Court has not classified the cases on the basis of gender in the judgement of Satender Kumar Antil (supra). Learned counsel has further placed reliance on the order of the Apex Court passed in Satender Kumar Antil dated 21.3.2023 whereby it had expressed displeasure over the non-compliance of the said order. 8. Learned counsel has also stated that the informant herein is a practicing advocate at District Court, Moradabad and is hell bent on getting the applicant send behind the bars somehow or the other and it is under her duress that the learned Magistrate has passed the said order dated 14.7.2022. It was also highlighted that the bailable warrants were issued against the applicant on 19.4.2022 and the learned Magistrate issued non-bailable warrants on 20.4.2022. Learned counsel has next stated that the applicant is a lecturer at Rishikul Brahmcharya Sanskrit Mahavidyalaya, Katghar Moradabad and had purchased the present house in the year 2019. There is a dispute between the parties over the disposal of garbage etc. an altercation has taken place between the parties on 7.10.2020. It is also argued that the applicant had called the police by dialing 112 at the spot. However, on the interference of the reputed persons of the locality, the compromise was entered into between the parties the same day on 7.10.2020 itself, which has been filed as Annexure-14 to the affidavit. 9. Learned counsel has next stated that the applicant has preferred a contempt petition against the non-compliance of the order of this Court dated 01.07.2022 before this Court vide Contempt Application No. 4552 of 2022 in which the Court has called instructions vide order dated 8.8.2021 and the petition is still pending. 10. Learned counsel has also stated that the applicant had also challenged the judicial order dated 14.7.2022 passed by the Magistrate before the Session Judge, Moradabad by filing criminal revision no. 211 of 2022 which was rejected by the Additional Session Judge, Court No. 1, Moradabad vide order dated 30.1.2023. 11. Learned counsel has next stated that after the rejection of the said criminal revision, the applicant again approached the Session Judge, Moradabad, seeking the anticipatory bail, but has rejected the same vide order dated 14.3.2023. 211 of 2022 which was rejected by the Additional Session Judge, Court No. 1, Moradabad vide order dated 30.1.2023. 11. Learned counsel has next stated that after the rejection of the said criminal revision, the applicant again approached the Session Judge, Moradabad, seeking the anticipatory bail, but has rejected the same vide order dated 14.3.2023. Learned counsel has next stated that the fundamental rights enshrined in Article 21 of the Constitution of India stands violated as he has been subjected to litigation by the informant, who is an advocate. 12. Learned counsel has further stated that the statement of the informant and her daughter are contradictory to the FIR, thus, the prosecution story stands falsified. Learned counsel has next stated that the statement of the victim under Section 164 Cr.P.C. has been recorded after an inordinate delay of 45 days of the alleged incident. The said statement has been recorded after legal consultation and deliberations. 13. Learned counsel has also stated that the applicant is a lecturer in a degree college and has an unblemished record having no criminal history to his credit. The applicant has not misused the anticipatory bail granted by this Court vide order dated 19.2.2021 till the submission of report under Section 173(2) Cr.P.C. and has co-operated during investigation and is ready to do so during trial also. Case Laws referred to by the Counsel for the Applicant: (i) Satender Kumar Antil (supra) (ii) Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 2553 of 2022 order dated 12.5.2022, whereby it was opined that the C.J.M. Bijnor has not complied with the mandate of the law laid down in Satender Kumar Antil (supra), as such, he shall dispose of the bail application without taking the applicants to judicial custody. (iii) In Chandmal v. State of Madhya Pradesh and Another 2023 SCC Online SC 127 it has been held as under:- "6. We are not also be able to appreciate the impugned order dated 24.1.2022 passed by the High Court calling upon the appellants, despite recognizing the fact that they are aged persons in their 70s and the alleged offences has a maximum punishment up to seven years, they have been called upon to surrender in the Court concerned. (iv) In Criminal Misc. (iv) In Criminal Misc. Anticipatory Bail Application No. 438 Cr.P.C. No. 3532 of 2022, Suresh Babu v. State of U.P. and Another, the proceedings under Sections 82 and 83 Cr.P.C. were undertaken during the pendency of the anticipatory bail application and the investigation was going on, as such, the anticipatory bail application of the applicants was allowed. Arguments for the Informant and the State: 14. In rebuttal, learned counsel for the informant and learned A.G.A. for the State have vehemently opposed the anticipatory bail on the ground that the applicant had relinquished all his rights already as this is the fourth anticipatory bail application. The applicant had even moved a regular bail application before the Magistrate concerned and the learned Magistrate has declined to hear the bail application without taking him into custody. 15. Learned counsel has further stated that the judgement of the Apex Court passed in Satender Kumar Antil (supra) has used the word "may" and not "shall". The Apex Court has left it to the discretion of the Court concerned to take him to custody or not. Learned counsel has next stated that the applicant and other co-accused persons had filed an Application under section 482 Cr.P.C. No. 24115 of 2021 and the same was dismissed vide order dated 8.3.2022. The substantial period of time has elapsed since the disposal of the said petition filed by the applicant. Learned counsel has also stated that the learned trial court has issued notice against the applicant under section 82 Cr.P.C. on 15.3.2023 while the present anticipatory bail application has been filed on 21.3.2023 before this Court, as such, the applicant is not entitled for anticipatory bail in light of the judgement of the Apex Court passed in Lavesh v. State (NCT of Delhi) (2012) 8 SCC 730 , whereby it is opined that the accused is not entitled for anticipatory bail after the proclamation under section 482 Cr.PC. has been made. 16. Learned counsel has placed reliance on the judgement of this Court passed in Shivam v. State of U.P. AIR Online 2021 All 484, whereby it is held that if the applicant has agitated the provisions of Section 482 Cr.P.C. and has failed, he cannot be enlarged on anticipatory bail. Learned counsel has next stated that the applicant and co-accused persons have outraged the modesty of two women and had even torn off the clothes of the informant. Learned counsel has next stated that the applicant and co-accused persons have outraged the modesty of two women and had even torn off the clothes of the informant. The said allegations stand fortified by the statements of the informant and the victim recorded under Section 164 Cr.P.C. The other co-accused have not been enlarged on anticipatory bail, rather they have been enlarged on regular bail by Session Judge, Moradabad vide order dated 4.5.2022. The applicant is not entitled for anticipatory bail as he is used to filing several applications at various forums and has delayed the trial since 2020. He is not cooperating and the matter is pending since last three years. Conclusion: 17. The prosecution story as alleged in the FIR stands fortified by the fact that the FIR has been instituted by an order of the SSP, Moradabad. The applicant has already agitated the provisions of Section 482 Cr.P.C. and has failed that too on 8.3.2022. Much water has fallen down the Ganges since then and it is the applicant, who has stalled the trial at one pretext or the other by moving several applications and this is the fourth anticipatory bail application. The proceedings under Section 82 Cr.P.C. have been initiated against the applicant. 18. Considering the facts and circumstances of the case and also the arguments advanced by the learned counsel for the parties, and taking into consideration the judgement of Lavesh (supra) and Shivam (supra) and also the fact that the applicant was refused the protection under section 438 Cr.P.C. twice, this Court finds that the arguments tendered at bar pertain to regular bail application and cannot be agitated under section 438 Cr.P.C., therefore, I do not find it a fit case for granting the anticipatory bail to the applicant. 19. In view of the above, the present anticipatory bail application is rejected.