Sunday 25 September 2022

Whether second Anticipatory Bail application is Maintainable If Reason For Rejection Of First Bail Plea Has Been Washed Off?

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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