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2023 DIGILAW 1829 (ALL)

Suraj Harijan v. State of U. P.

2023-07-31

NALIN KUMAR SRIVASTAVA

body2023
JUDGMENT : Nalin Kumar Srivastava, J. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. Apprehending his arrest the present application has been moved on behalf of the applicant-Suraj Harijan seeking anticipatory bail in Case Crime No.124 of 2021, under Section 461 IPC and Section 25 Indian Telegraph Act, Police Station-Harpur Budahat, District-Gorakhpur. 3. The prosecution story as unfolded in the FIR is that on 24.11.2021 at 7.10 AM Technician Shreyansh Yadav working in a Door Sanchar Vodafone Mobile Tower IN1231083 informed the informant that 4 batteries have been stolen from the battery bank by breaking the lock of the main gate by some unknown person. FIR was lodged on 24.11.2021 at 16.16 hours and investigation started. 4. It has been submitted by the learned counsel for the applicant that the applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Investigation is going on in the matter. It is further submitted that the applicant is not named in the FIR and no incriminating article has been recovered from any place under control or from possession of the present applicant. In case applicant is granted anticipatory bail, he shall not misuse the liberty of bail and would obey all conditions of bail. 5. Learned A.G.A. opposed the prayer for anticipatory bail. 6. At the very outset it appears from perusal of the record that earlier in Cr. Misc. Anticipatory Bail Application No.8413 of 2022 the applicant Suraj Harijan and co-accused Vikas Gupta had been given liberty by this Court to file regular bail application before the court concerned and with the observation that since the offence alleged against the applicant was punishable with the imprisonment for a maximum period of seven years and they had no apprehension of arrest, the anticipatory bail application was disposed of in the aforesaid terms vide order dated 06.09.2022. However, no regular bail application in the light of the law laid down by Hon'ble Apex Court in the case of Satender Kumar Antil v. CBI and Others 2022(10) SCC 51 , Siddharth v. State of U.P. & Anr. However, no regular bail application in the light of the law laid down by Hon'ble Apex Court in the case of Satender Kumar Antil v. CBI and Others 2022(10) SCC 51 , Siddharth v. State of U.P. & Anr. 2022(1) SCC 676 and Aman Preet Singh v. C.B.I. through Director 2021 SCC OnLine SC 941 was moved before the trial Court as directed by this Court and anticipatory bail application was moved by the present applicant before the Sessions Court subsequently, which was not permissible under law to the applicant but however the factum of anticipatory bail application moved before and disposed of by this Court was brought to the knowledge of the Court of Additional Session Court, Court No.2, Gorakhpur which entertained and disposed of the said application. 7. There is a statutory provision that if the anticipatory bail application has been entertained by the High Court itself then after its disposal in any way the same applicant has no legal right to move anticipatory bail application before the Sessions Court in the same matter. Section 438 (7) Cr.P.C as amended in the state of Uttar Pradesh lays down the legislative scheme and expressly provides that "(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session." 8. Now in order to circumvent the express provisions of law this Court has been approached to entertain and consider the anticipatory bail application of the applicant after rejection of the same by the Sessions Court and by this Court, as well. 9. The order dated 06.09.2022 passed by this Court in Cr. Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No.8413 of 2022 commands a specific direction to the applicant in that matter to move regular bail application before the Court concerned within 15 days from the date of the order, which was to be heard and disposed of expeditiously by the Court below in view of the law laid down in the case of Satender Kumar Antil v. CBI and Others 2022(10) SCC 51 1, Siddharth v. State of U.P. & Anr. 2022(1) SCC 676 and Aman Preet Singh v. C.B.I. through Director 2021 SCC OnLine SC 941. 2022(1) SCC 676 and Aman Preet Singh v. C.B.I. through Director 2021 SCC OnLine SC 941. Since the said order was not complied with by the applicant he was not entitled to file second anticipatory bail before the High Court as the sanctity of the order of this Court could, in no circumstance, be permitted to have faded into oblivion. 10. In a similar matter Mohd.Sharif Siddiqui v. The State of Uttar Pradesh and Anr. SLP No.11316 of 2022 (07.12.2022-SC Order): MANU/SCOR/125299/2022 the Hon'ble Apex Court passed the following order on 07.12.2022, which is referred herein below: "Considering the fact that the earlier anticipatory bail application was preferred and the same came to be withdrawn with liberty to surrender before the trial Court and apply for regular bail, thereafter second anticipatory bail application shall not be maintainable, more particularly, in the absence of any changed circumstances. The High Court has rightly rejected the second anticipatory bail application. The Special Leave Petition stands dismissed. Pending applications stand disposed of." 11. The legal position as to the filing of the second and successive anticipatory bail application is settled in a plethora of judgments that the same can be filed only where there are change in circumstances to enable the petitioner to establish his entitlement for anticipatory bail in view of the change in circumstances. 12. In G.R.Ananda Babu v. State of T.N. and Another, 2021 SCC OnLine SC 176 the Honble Apex Court promulgated the dictum of law on the point and held thus- "7. As a matter of fact, successive anticipatory bail applications ought not to be entertained. The specious reason of change in circumstances cannot be invoked for successive anticipatory bail applications, once it is rejected by a speaking order and that too by the same Judge." 13. Recourse may also be taken from a categorical finding given by the Hon'ble Apex Court on the issue in Md.Shamim Khan v. The State of Jharkhand SLP (Crl) No.9449 of 2021 (16.12.2021-SC Order): MANU/SCOR/53999/2021 which was made like this: "Even before us, the learned counsel for the petitioner is unable to show any change of circumstances to invoke the jurisdiction of filing second application under Section 438 of the Code before the High Court. We deprecate such practice of filing second bail application under Section 438 of the Code after the first being rejected." 14. We deprecate such practice of filing second bail application under Section 438 of the Code after the first being rejected." 14. In the similar matter the Kerala High Court in Bipin Sunny v. State of Kerala, 2023 SCC OnLine Ker 5570 held like this- "13. Coming to the question regarding filing of anticipatory application before the Sessions Court, after dismissal of anticipatory bail plea by the High Court, that too, after suppressing the adverse order from the High Court, cannot be justified for any reason. Therefore, in order to keep judicial discipline in tact, in cases where the High Court rejected anticipatory bail plea, second or successive anticipatory bail applications, pointing out change in circumstances, have to be filed before the High Court and not before the Sessions Court." 15. In Suresh Chand v. State of Rajasthan 2001 SCC Online Raj 534 dealing with the question whether after rejection of anticipatory bail application by the High Court, the accused is entitled to make second bail application before the Sessions Court under Section 438 Cr.P.C., it was propounded that after rejection of bail application under Section 438 Cr.P.C. by the High Court second anticipatory bail application is not maintainable. Further, after rejection of bail application made by the accused petitioner before the High Court under Section 438 Cr.P.C. second bail application for the same relief is not maintainable even before the High Court and the Sessions Judge has absolutely no jurisdiction to entertain the second anticipatory bail application. 16. The Courts should always be circumspect while exercising their jurisdiction in any sphere of law as jurisdiction is an ornament of the Court which is embedded in it and cannot be created or assumed by any artificial means. If there is a statutory prohibition for exercise of jurisdiction by a Court such jurisdiction cannot be exercised as what is prohibited by law directly, cannot be done indirectly. At the same time it must always be borne into mind that non-pleading of issue of jurisdiction will not clothe the Court with jurisdiction when expressly barred by any statute. If there is a statutory prohibition for exercise of jurisdiction by a Court such jurisdiction cannot be exercised as what is prohibited by law directly, cannot be done indirectly. At the same time it must always be borne into mind that non-pleading of issue of jurisdiction will not clothe the Court with jurisdiction when expressly barred by any statute. Since by way of legal provision provided under Section 438 (7) Cr.P.C. as applicable in present case consideration for grant of anticipatory bail to an accused by a Sessions Court is barred, in case prior to that, anticipatory bail application had already been filed and disposed of by the High Court, hence, the Sessions Courts should be very vigilant to cross their legal limitations, as omitted in the present case. 17. One more aspect which makes the present application devoid of consideration for grant of anticipatory bail has been taken cognizance of by this Court that in para 4 of the affidavit annexed with the anticipatory bail application, the present application has been termed as the first anticipatory bail application and it is deposed that no previous application under Section 438 Cr.P.C. has been filed or pending before this Court or its Lucknow Bench for the same cause of action. On the very face of record, it is certainly suppression of a material fact as Anticipatory Bail Application No.8413 of 2022 had already been filed and disposed of by this Court in this matter vide order dated 06.09.2022 and it indubitably negates the prayer made by the applicant for grant of anticipatory bail in his favour. 18. The view taken by this Court derives support from the judgment passed by the Hon'ble Apex Court in Arunima Baruah v. Union of India, 2007(6) SCC 120 wherein it was held as hereunder "12. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands." 19. A similar view has been taken in Prestige Lights Ltd. v. State Bank of India, 2007(8) SCC 449 wherein denuding the claim of a person not coming before the Court with clean hands, it was so observed by the Hon'ble Apex Court: "35. ............If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter." 20. Hence, in view of the settled law, there is no justification to proceed with the present anticipatory bail application as it is legally not maintainable and has been moved with suppression of material facts. 21. With these observations and without making any comment upon the lackadaisical approach of the court concerned which has been cavalier to entertain the anticipatory bail application which was legally not maintainable before it, it is held that the present application is not maintainable, and is accordingly, rejected.