The Lucknow Bench of the Allahabad High Court allowed an anticipatory bail application and observed that the second application may be considered by the Court if the reason for rejecting the first bail application has been washed off.
A single-judge bench of Justice Rajesh Singh Chauhan passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Anurag Dubey.
As per the counsel for the applicant, the applicant is apprehending his arrest in Case Crime/ FIR 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 had been rejected on 04.10.2021.
Addressing on the ground of maintainability, the counsel for the applicant submitted that the judge, who 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 further submitted that the ground of rejection of first anticipatory bail application has been washed off in as much as the order dated 28.10.2021 allowing the petition under Section 482 CrPC of the applicant quashing the impugned order whereby the proclamation under Section 82 CrPC was issued against him.
The counsel for the applicant also submitted that after rejection of his anticipatory bail application on 04.10.2021 and the order dated 28.10.2021, one co-accused Varun Mishra has been granted anticipatory bail by the Court order dated 28.03.2022.
Not only the above, after rejection of first anticipatory bail application of the applicant on 04.10.2021, one another co-accused, Subhendra Mani Tiwari, has been granted anticipatory bail by the Court order dated 18.10.2021. There is one more co-accused, Pankaj Singh alias Ajay Singh, who has been granted anticipatory bail by Court order dated 28.03.2022.
Not only the above, attention has been drawn towards a 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, Singh has submitted that since the reason to reject the first anticipatory bail application i.e the applicant was declared absconder as proclamation under Section 82 CrPC 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 applicant and there is no bar to move the second anticipatory bail application, if the applicant is able to demonstrate new/ fresh ground. Besides, the physical/ medical condition of the applicant is so critical as he has recently undergone kidney transplant on 01.04.2022, therefore, if, in such a 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.
AGA Vinay Kumar Shahi informed the Court that this is a case wherein the cross FIRs have been lodged from both the sides and chargesheet has been filed. So far as the medical condition of the applicant is concerned, as per 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 the first anticipatory bail application of the applicant.
The Court noted,
However, AP Mishra, counsel for the informant/ complainant has drawn attention of the Court towards his counter affidavit wherein he has shown the orders of the 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 applicant is concerned, AP 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 the 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 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 Apex Court has observed that successive anticipatory bail applications on the same grounds and facts may not be entertained but in the 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 applicant, which discloses that the 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 applicant may not take advantage 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 the merits of the issue, in view of the facts and circumstances considered above, I find it appropriate that liberty of the applicant be protected till conclusion of the trial proceedings,” the Court observed while allowing the anticipatory bail application.
The Court 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.