Allahabad High Court Entertains And Allows A Second Anticipatory Bail Plea Filed On Fresh Grounds

The bench of Justice Karunesh Singh Pawar granted anticipatory bail [till the filing of police report u/s 173(2) CrPC] to one Rajnish Chaurasia who has been accused of inter alia causing hurt to the first informant in May 2022.

With this, the bench rejected the contention raised by AGA that the second anticipatory bail application of the applicant was not maintainable on the ground that the Allahabad High Court, in the case of Raj Bahadur Singh Vs. State of UP, reported in 2022 LiveLaw (AB) 493, ruled that a second and successive anticipatory bail application is not maintainable.

It may be noted that in Raj Bahadur Singh’s case (supra), the High Court had also said that Section 438 of CrPC is merely a statutory right and the power to grant anticipatory bail does not flow from Article 21 of the Constitution.

Read more about the November 2022 ruling of the Allahabad HC: Anticipatory Bail Only A Statutory Right Not Linked With Article 21; Successive Pleas Not Maintainable: Allahabad High Court

Here it may be noted that in Sushila Aggarwal vs State (Nct Of Delhi) and others case, the Supreme Court remarked that the interpretation that Section 438 of CrPC doesn't encapsulate Article 21 is erroneous.

Further, referring to Judgments wherein it has observed that Section 438 CrPC is not linked with Article 21, the Apex Court opined that this interpretation was contrary to the broad terms of the power declared by the Constitution Bench of the Top Court in Gurbaksh Singh Sibbia Etc vs State Of Punjab 1980 AIR 1632.]

The case in brief

Essentially, Accused Rajnish Chaurasia had moved the instant second anticipatory bail plea after his first plea was rejected on the ground that due to inadvertence, it was not brought to the notice of the court that offence under section 386 I.P.C. which was added subsequent to the lodging of the first information report is punishable for a sentence upto 10 years.

It was also submitted that the judgment in Raj Bahadur Singh (supra) does not lay down the correct position of law as it was contrary to the Constitution Bench judgment in Sushila Aggarwal versus State (NCT of Delhi) AIR 2020 SC 831.

Though AGA opposed the maintainability of the second anticipatory bail application, however, he did not dispute the fact that Section 438 CrPC encapsulates Article 21 of the Constitution.

Further, defending the accused on the merits of the case, his counsel argued the F.I.R. had been lodged after a delay of two days and in the F.I.R., the name of only Chaurasiya was mentioned and that his first name was not mentioned.

It was further submitted that the applicant is not known to the informant (who received simple injuries) and during the course of the investigation, the prosecution story in the F.I.R. was not found true and therefore, Section 364 and 392 I.P.C. were dropped and in that place Sections 342/386 I.P.C. have been introduced.

It was also submitted that co-accused Abhishek Rai, upon whom clear specific allegations have been made in the F.I.R. has been enlarged on bail by the learned trial court.

Taking into account the facts of the case and the arguments advanced by the counsel of both parties and considering the nature of the accusation and having no criminal antecedents, coupled with the undertaking given by the applicant that he will cooperate in the investigation, the Court found him eligible for anticipatory bail till the filing of police report u/s 173(2) CrPC.

In this regard, the Court also took note of the Allahabad HC’s ruling in the case of Anurag Dubey Vs. State of U.P., 2022 LiveLaw (AB) 444, wherein it has been held by the Coordinate Bench of the Court that on fresh grounds, the second anticipatory bail may be considered.

Appearances

Counsel for Applicant: Vinay Kumar Verma, Abhishek Srivastava, Kamini Kumari Ojha, Neeraj Pandey, Surendra Singh

Counsel for Opposite Party: G.A.

Case title - Rajnish Chaurasia Alias Rajnesh Chaurasia vs. State Of U.P. Thru. Prin. Secy. Home, Civil Sectt. Lko. And Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 31 of 2023]

Case Citation: 2023 LiveLaw (AB) 42

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