Having heard learned counsel for the parties and having
perused the material available on record, I find that in view of
the aforesaid facts and circumstances, the second anticipatory
bail application is maintainable. If the reason for rejecting the
first anticipatory bail application has been washed off vide
subsequent order dated 28.10.2021 (Annexure No.2) and other
co-accused persons have been granted anticipatory bail, it may
be considered as a fresh/ new ground. I am aware of the law
that the Hon'ble Apex Court has observed that successive
anticipatory bail applications on the same grounds and facts
may not be entertained but in the present case, the ground is
different, rather it is a fresh ground and the reason for rejecting
the first bail application has been washed off, therefore, the
second anticipatory bail application may be considered. There is
one relevant aspect relating to physical/ medical condition of
the present applicant, which discloses that the present applicant
has undergone kidney transplant on 01.04.2022 and the patient,
who has undergone kidney transplant recently, is prone to
infections, therefore, in such condition, if the applicant is taken
into custody for any reasons, his life would be endangered.
However, it is observed that the present applicant may not take
benefit of his physical/ medical condition and he will cooperate
with the trial proceedings to the best of his medical condition
and capability. If at any place it is found that he deliberately
avoids the trial proceedings and misuses the liberty of bail, any
appropriate application may be filed seeking cancellation of his
bail and that application may be considered at the earliest.
ALLAHABADA HIGH COURT
Case :- CRIMINAL MISC ANTICIPATORY BAIL
APPLICATION U/S 438 CR.P.C. No. - 1327 of 2022
Applicant :- Anurag Dubey (Second Abail )
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home
Hon'ble Rajesh Singh Chauhan,J.
Order Date :- 20.9.2022
Heard Sri Sheo Prakash Singh, learned counsel for the
applicant, Sri Vinay Kumar Shahi, learned AGA for the State
and Sri A.P. Mishra, learned counsel for the informant/
complainant.
Counter affidavit filed by the learned AGA is taken on record.
As per learned counsel for the applicant, the present applicant is
apprehending his arrest in Case Crime/ F.I.R. No.407 of 2020,
under Sections 147, 148, 149 & 307 IPC, Police Station -
Kotwali Nagar, District - Pratapgarh.
This is the second anticipatory bail application as the first
anticipatory bail application has been rejected on 04.10.2021
passed by this Court in Criminal Misc. Anticipatory Bail
Application No.11066 of 2021.
Addressing on the ground of maintainability, learned counsel
for the applicant has submitted that the Hon'ble Judge, who has
rejected the first anticipatory bail application, has been
transferred to another State, therefore, the second anticipatory
bail application may be entertained by the regular Court. He has
also submitted that the ground of rejection of first anticipatory
bail application has been washed off inasmuch as vide order
dated 28.10.2021 passed by this Court in Misc. Single
No.22124 of 2021 allowed the petition under Section 482
Cr.P.C. of the present applicant quashing the impugned order
whereby the proclamation under Section 82 Cr.P.C. was issued
against him. Learned counsel for the applicant has also
submitted that after rejection of his anticipatory bail application
on 04.10.2021 and the order dated 28.10.2021 (Annexure
No.2), one co-accused, namely, Varun Mishra has been granted
anticipatory bail by this Court vide order dated 28.03.2022
passed in Criminal Misc. Anticipatory Bail Application
No.11016 of 2021. Not only the above, after rejection of first
anticipatory bail application of the applicant on 04.10.2021, one
another co-accused, namely, Subhendra Mani Tiwari has been
granted anticipatory bail by this Court vide order dated
18.10.2021 passed in Criminal Misc. Anticipatory Bail
Application No.11019 of 2021. There is one more co-accused,
namely, Pankaj Singh alias Ajay Singh, who has been granted
anticipatory bail by this Court vide order dated 28.03.2022
passed in Criminal Misc. Anticipatory Bail Application
No.10905 of 2021.
Not only the above, attention has been drawn towards one
medical certificate dated 03.08.2022, which is taken on record,
which discloses that the present applicant has undergone kidney
transplant on 01.04.2022, therefore, his physical/ medical
condition is so sensitive and he should be kept under isolation
to avoid further infections. Therefore, Sri Singh has submitted
that since the reason to reject the first anticipatory bail
application i.e. present applicant was declared absconder as
proclamation under Section 82 Cr.P.C. was issued against him
has been washed off as this Court vide order dated 28.10.2021
set aside said order. Other co-accused persons have been
granted anticipatory bail subsequent to the rejection of first
anticipatory bail application of the present applicant and there is
no bar to move the second anticipatory bail application, if the
applicant is able to demonstrate new/ fresh ground. Besides,
physical/ medical condition of the present applicant is so
critical as he has recently undergone kidney transplant on
01.04.2022, therefore, if, in such condition, he is arrested, his
life would be endangered and his fundamental right enshrined
under Article 21 of the Constitution of India would be violated.
Sri Vinay Kumar Shahi, learned AGA has informed the Court
that this is a case wherein the cross FIRs have been lodged from
both the sides and charge sheet has been filed. So far as the
medical condition of the present applicant is concerned, as per
Sri Shahi, he has nothing to say. He has also submitted that he
may not dispute those facts that the other co-accused persons
have been granted anticipatory bail subsequent to the rejection
of first anticipatory bail application of the present applicant.
However, Sri A.P. Mishra, learned counsel for the informant/
complainant has drawn attention of this Court towards his
counter affidavit wherein he has shown the orders of the
Hon'ble Apex Court whereby anticipatory bails granted in
favour of other co-accused persons have been set aside and the
issue has been remanded to the High Court to reconsider the
same. So far as physical/ medical condition of the present
applicant is concerned, Sri A.P. Mishra has submitted that he
has nothing to say on that, but he has submitted that since the
first anticipatory bail application of the applicant has been
rejected, therefore, instead of filing the second anticipatory bail
application, the applicant should file his regular bail application
and may seek the benefit disclosing his medical condition to the
regular court.
Having heard learned counsel for the parties and having
perused the material available on record, I find that in view of
the aforesaid facts and circumstances, the second anticipatory
bail application is maintainable. If the reason for rejecting the
first anticipatory bail application has been washed off vide
subsequent order dated 28.10.2021 (Annexure No.2) and other
co-accused persons have been granted anticipatory bail, it may
be considered as a fresh/ new ground. I am aware of the law
that the Hon'ble Apex Court has observed that successive
anticipatory bail applications on the same grounds and facts
may not be entertained but in the present case, the ground is
different, rather it is a fresh ground and the reason for rejecting
the first bail application has been washed off, therefore, the
second anticipatory bail application may be considered. There is
one relevant aspect relating to physical/ medical condition of
the present applicant, which discloses that the present applicant
has undergone kidney transplant on 01.04.2022 and the patient,
who has undergone kidney transplant recently, is prone to
infections, therefore, in such condition, if the applicant is taken
into custody for any reasons, his life would be endangered.
However, it is observed that the present applicant may not take
benefit of his physical/ medical condition and he will cooperate
with the trial proceedings to the best of his medical condition
and capability. If at any place it is found that he deliberately
avoids the trial proceedings and misuses the liberty of bail, any
appropriate application may be filed seeking cancellation of his
bail and that application may be considered at the earliest.
Therefore, without entering into merits of the issue, in view of
the facts and circumstances considered above, I find it
appropriate that liberty of the present applicant be protected till
conclusion of the trial proceedings.
Accordingly, the instant anticipatory bail application is
allowed.
It is directed that in the event of arrest, applicant- Anurag
Dubey shall be released on anticipatory bail in the aforesaid
case crime number on his furnishing a personal bond of
Rs.50,000/- with two sureties each in the like amount to the
satisfaction of the arresting authority/ court concerned with the
following conditions:-
1. that the applicant shall make himself available for
interrogation by a police officer as and when required;
2. that the 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 from disclosing such
facts to the court or to any police officer or tamper with the
evidence;
3. that the accused-applicant shall not leave India during
pendency of the investigation/trial without prior permission of
the concerned court and shall also surrender his passport, if any,
before the concerned Court forthwith.
4. that in default of any of the conditions mentioned above, the
investigating officer shall be at liberty to file appropriate
application for cancellation of anticipatory bail granted to the
applicant;
5. that the applicant shall not pressurize/ intimidate the
prosecution witness;
6. that the applicant shall appear before the trial court on each
date fixed unless personal presence is exempted;
7. that in case of breach of any of the above conditions, the
court below shall have the liberty to cancel the bail.
[Rajesh Singh Chauhan,J.]
Order Date :- 20.9.2022
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