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2023 DIGILAW 1979 (ALL)

Neeru Kumar Yadav v. State of U. P.

2023-08-17

NALIN KUMAR SRIVASTAVA

body2023
JUDGMENT : 1. Supplementary affidavit filed today is taken on record. 2. Crl. Misc. Exemption Application No.02 of 2023 is allowed. 3. At the very outset, learned counsel for the applicants submits that he is not pressing the anticipatory bail application in respect of applicant no.1 Neeru Kumar Yadav, as he is already under judicial custody. He confines his prayer only to the extent of prayer for granting anticipatory bail to the applicant no.2 Lallan @ Pushpendra Singh during the pendency of trial in Case Crime No.530 of 2018 (Case No.3420 of 2018, State of U.P. Vs. Neeru and Others) under Sections 323, 308 IPC, Police Station Dibiyapur, District Auraiya. 4. Heard learned counsel for the applicant, learned A.G.A for the State as well as learned counsel for the informant / opposite party no.2 and perused the record. 5. A NCR was filed under section 323 IPC by the informant of the case against the applicants no.1 and 2 along with two other co-accused persons on 24.1.2018 at 20:10 p.m. alleging therein that an assault was made by them with kicks, fists, lathi and danda upon him on 24.1.2018 at 17:00 p.m. During course of investigation, section 308 IPC was added to the matter. Thereafter, after investigation, charge-sheet was submitted. 6. It is submitted by the learned counsel for the applicant no.2 that the applicant is innocent and has no concern with the present matter. He has been falsely implicated in this matter. Allegations levelled against the applicant are false. Applicant's case is squarely covered under Section 438 Cr.P.C. It is further submitted that the present case is a cross case and a cross F.I.R. was lodged on behalf of the applicant's side as Case Crime No.73 of 2018 under sections 354, 323, 506 IPC and that was lodged prior to the NCR made by the informant side in this matter. It is further submitted that no specific role of assault has been assigned to the present applicant in the alleged crime. It is further submitted that except one injury caused to the informant / injured as nasal bone fracture, all other injuries are simple in nature. It is further submitted that during course of investigation the applicant has been cooperative with the investigation of the case. It is further submitted that except one injury caused to the informant / injured as nasal bone fracture, all other injuries are simple in nature. It is further submitted that during course of investigation the applicant has been cooperative with the investigation of the case. He never received any summon / process by the Court after submission of the charge-sheet and had absolutely no knowledge about the punitive process issued against him by the Court. It is further submitted that the criminal history of the applicant has been explained by way of supplementary affidavit. On the aforesaid grounds a prayer for grant of anticipatory bail has been made. 7. Per contra, learned A.G.A. as well as learned counsel for the informant / opposite party no.2 vehemently opposed the prayer for anticipatory bail. At the very outset, it has been submitted that process under section 82 Cr.P.C. has already been issued by the court concerned on 16.6.2023 against the applicant no.2 after adopting the required procedure to procure the appearance of the applicant before it. It is further submitted that the anticipatory bail application moved by the applicant before the Sessions Court was rejected on 14.7.2023 and even on that date the applicant had already been declared as a proclaimed offender by the Court. In support of his contention, reliance has been placed upon the decisions of the Hon'ble Apex Court in Prem Shankar Prasad vs. State of Bihar and Another, 2021 SCC OnLine SC 955 and State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171 . It is further submitted that grievous injuries have been caused to the informant / injured in this case and specific role of assault has been assigned to the present applicant in the statement of the injured himself given to the Investigating Officer under section 161 Cr.P.C. It is further submitted that the applicant is not cooperating with the trial court at all and in view of the established legal principles for consideration for grant of anticipatory bail, he is not entitled for anticipatory bail in the present matter. 8. A perusal of the record reflects that the charge-sheet in this matter was filed in 2018 and cognizance was taken on 24.8.2018. 8. A perusal of the record reflects that the charge-sheet in this matter was filed in 2018 and cognizance was taken on 24.8.2018. Several processes were sent to the accused applicant to procure his appearance before the Court, but since he was absconding, non-bailable warrant was issued against him on 28.10.2022 and subsequently the Court found that he was deliberately avoiding the service of the process and his appearance before the Court. An order was passed to issue process under section 82 Cr.P.C. by the Court on 16.6.2023 against the applicant. The anticipatory bail application of the present applicant was rejected by the Sessions Court on 14.7.2023. It is explicitly clear that when such application was being heard by the Sessions Court, Auraiya, the accused applicant had already been declared 'a proclaimed offender'. 9. The present applicant, against whom process under Section 82 Cr.P.C. has been issued and who has been declared as a proclaimed offender, is not entitled for the protection by way of anticipatory bail in the light of the law laid down in Prem Shankar Prasad case (supra) and State of Madhya Pradesh vs. Pradeep Sharma (supra). 10. Further more, the applicant has utterly failed to show any valid reason for his abscondence and also to put forth any compelling circumstance under which he had been unable to honour and comply with and to submit himself to the process of the Court which resulted into issuance of punitive process against him and for making a declaration against him to bring him under the category of a proclaimed offender. Since no such exceptional ground exists in favour of the applicant, he, without adhering himself to the legal process issued by the Court, is bereft of protection provided by the statute by way of anticipatory bail. 11. Recently, the Hon'ble Apex Court in Abhishek Vs. State of Maharashtra, (2022) 8 SCC 282 has reiterated the legal dictum in respect of grant of anticipatory bail to an absconder and held as hereunder : "68. As regards the implication of proclamation having been issued against the appellant, we have no hesitation in making it clear that any person, who is declared as an "absconder" and remains out of reach of the investigating agency and thereby stands directly at conflict with law, ordinarily, deserves no concession or indulgence. As regards the implication of proclamation having been issued against the appellant, we have no hesitation in making it clear that any person, who is declared as an "absconder" and remains out of reach of the investigating agency and thereby stands directly at conflict with law, ordinarily, deserves no concession or indulgence. By way of reference, we may observe that in relation to the indulgence of pre-arrest bail in terms of Section 438 CrPC, this Court has repeatedly said that when an accused is absconding and is declared as proclaimed offender, there is no question of giving him the benefit of Section 438 CrPC." (Prem Shankar Prasad case (supra) referred to.) 12. In view of the established law laid down by the Hon'ble Apex Court, I deem it not a fit case for grant of anticipatory bail to the present applicant. Such a person, who does not cooperate with the investigation / trial at all and has been a willful defaulter, is not entitled for any relief from this Court by way of granting anticipatory bail. 13. Accordingly, and in view of the above, this anticipatory bail application is rejected.