Anticipatory Bail Application Lucknow High Court
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IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH,
LUCKNOW
Cri. Misc. Second Anticipatory Bail Appl. No. of 2023
(U/s. 438 Cr.P.C.)
XXXXXXXXXX S/o XXXXXXXXX, R/o Village Sakraur Marchaur, Police
Station Paraspur, District XXXXXXXX.
............Applicant
Versus
1.
State of U.P. through Principal Secretary
Home, Civil Secretariat, U.P., Lucknow.
2.
Smt. XXXXX, W/o- XXXXXX, R/o- Near
Raghukul School, XXXXXX, Police Station XXXXXXX, District XXXXXXX.
.....Opposite Parties.
Case Crime No. 000/2022
State versus XXXXXX Pandey
U/s-376, 328,504, 506,420 I.P.C.
Police Station XXXXXX,
District-XXXXXX.
Anticipatory Bail Application No.
1007/2023 has been rejected vide order dated 17.04.2023 passed by Session
Judge Gonda.
First Crl. Misc. Anticipatory Bail Application No.1033/2023 has been
rejected vide order dated …../….2023 passed by this Hon’ble Court.
SECOND ANTICIPATORY BAIL APPLICATION U/s-438 Cr.P.C.
The applicant/accused named
above most respectfully submits as under: -
For the facts, reasons and circumstances
mentioned in the accompanying affidavit, it is most respectfully prayed that
this Hon'ble Court may kindly be pleased to release the applicant on
anticipatory bail in Case Crime No. 224/2022, U/s- 376, 328, 504, 506,420 IPC
Police Station Paraspur, District Gonda, during the pendency of trial, in the
interest of justice.
Lucknow
Date-21/4/2023
(Vinod Kumar Pandey)
Advocate
Counsel for the Applicant
IN THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH,
LUCKNOW
Stamp-Photo-Affidavit
Coupan
XXXXXXXXXXXXXXPandey …………..Applicant.
Versus
State of U.P. through Principal Secretary Home, Civil Secretariat, U.P., Lucknow and
another.
............Opposite
parties.
AFFIDAVIT
I, XXXXXXXXXX, aged about 58 years, S/o- XXXXXXXX, Resident of
Sakraur, Marchaur, Marchaur, XXXXXXX, Uttar Pradesh 271504,
Occupation-agriculture, Education- Literate the deponent do hereby solemnly
affirms and states on oath as under: -
1.
That the deponent is the brother of the
applicant as such he is well conversant with the facts of the case deposed
below.
2.
That the applicant is apprehending his arrest
on accusation of a non bailable offence in Case Crime No. XXXXX/2022, U/s- 376,
328, 504, 506,420 IPC Police Station Paraspur, District Gonda, as the first
informant is pressurizing the local police to arrest the deponent after filing
the charge sheet and consequent thereupon the local police visited the house of
applicant, thus there is a reasonable apprehension of the applicant being
arrested, as such, the doors of this Hon’ble Court by virtue of Section 438
Cr.P.C. is being filed knocked by means of instant second anticipatory bail application.
3.
That instant one is the Crl. Misc.
Anticipatory Bail Application No.1033 of 2023, on behalf of applicant was filed
before this Hon'ble Court and this Hon’ble Court pleased to reject the same
vide order dated / / 2023. The photo copy of order dated /
/2023 is being filed as Annexure No.1
to this affidavit.
4.
That instant one is the Second Anticipatory
Bail Application on behalf of applicant before this Hon’ble Court in the
present case crime.
5.
That it is submitted that the apprehending
accusation with regard to the applicant does not fall under the offences
provided under sub section (6) of the section 438 of Cr.P.C.
6.
That it is submitted that the applicant has
not filed any Previous Second Anticipatory Bail Application under section 438
Cr.P.C. before this Hon’ble Court either at Allahabad or Lucknow Bench or
before any other High Court in India, pertaining to the same subject matter.
7.
That it is submitted that the application
under section 438 Cr.P.C. was moved before the Court of Sessions Judge, Gonda
by means of Anticipatory Bail Application No.1007/2023 in present case crime,
which has been rejected vide order dated 17.04.2023. The photo copy of order
dated 17.04.2023, rejection anticipatory bail application of applicant, is
being filed herewith and marked as Annexure
No.2 to this affidavit.
8.
That with respect to criminal history of
applicant it is declared that apart from the instant case, he was implicated in:
-
(i)
Case crime no. 180 of 2016 U/s- 406, 504 ,506
I.P.C. Police Station - Paraspur District-Gonda and after being charge sheeted
and issuance of summoning order same were challenged by means of criminal misc.
application U/s- 482 No. 1167 of 2023 which was allowed on 07.02.2023 and
impugned summoning order was quashed with direction to pass fresh order but
till today no fresh summoning order has been passed.
(ii)
Case crime No.160/2015 U/s 419, 420, 467,
468,504 and 506, Police Station-Paraspur, District-Gonda.
9.
That an First Information Report was lodged
vide Case Crime No. 224/2022, U/s- 376, 328, 504, 506, 420 IPC Police Station
Paraspur, District Gonda against applicant/accused by first informant with the allegations
that Smt. Babita Man, who claims herself to be an educated lady alleges that
there is Junior High School named as Gopal Shankar Janak Dulari Junior High
School, Sakraur, Paraspur, Gonda and applicant allegedly informed that the said
school would be very soon a Govt. aided institution and believing the said fact
complainant started working as Principal and teacher since 2007 in the school.
Applicant allegedly informed that there is a case of school going on and if the
construction of boundary and building standard is meet out the complainant
would be a Govt. Teacher and the institution would also be a Govt. Institution,
thereafter complainant by borrowing money from her relatives and Mayka gave 26
lacs to Sudhakar Pandey the applicant. The school was constructed but no salary
was being paid and the hard-earned money was usurped. It is further alleged
that on 14.08.2022, complainant was called for preparation of function of 15th
August, then some intoxicant was added in the water and the misdeed was
committed and when the objection was raised, she was threatened for life. The
copy of First Information Report lodged as Case Crime No. 224/2022, is being
filed herewith and marked as Annexure No. 3,
to this affidavit.
10.
That the incident is alleged to be on14
August, 2022 and the First Information Report was lodged on 31.08.2022, which
is after 17 days without there being any plausible explanation.
11.
That the First Information Report contains
highly improbable and absurd story as no details of 26 lacs. allegedly given to
the applicant has been set out in the First Information Report and the source
of such huge amount including when it was withdrawn/managed through relatives
of complainant including the dates when it was allegedly given has not
mentioned in the First Information Report, similarly during course of
investigation first informant is silent that in what manner the alleged money
was entrusted.
12.
That there is no medical report to
demonstrate/corroborate the prosecution story with respect to commission of
offence U/s- 328 IPC i.e. administrating intoxicant. Further the allegation of
resistance after administration of intoxicant also does not appeal to the
common prudence.
13.
That the prosecution story that opposite party
no. 2 was employed in applicant's school since 2007 without any salary and she
herself has paid Rs. 26 lacs and continued to believe that one day she would
get the Govt. Job is again a purely hypothetical and unbelievable. It is
relevant to mention herein that Smt. Babita Man has claimed herself to be
Principal and teacher in Gopal Shankar Janak Dulari Junior High School, Sakraur,
Paraspur, Gonda but the attendance registers of Academic Session-2020-21, 2021-
22, 2022-23 clearly exhibits that Smt. Babita Man/ Complainant is not employed
in the aforesaid school. The copy of attendance registers of Academic
Session-2020-21, 2021-22, 2022-23, is being filed herewith and marked as Annexure No. 4, to this affidavit.
14.
That prosecutrix/opposite party no. 2 married
lady aged about 40 years.
15.
That applicant is a Head Teacher in Govt.
School i.e. Composite School, Sarfarazganj, Block Paraspur, District Gonda his
carrier is on stake due to criminal proceedings which has been initiated to
malign his career. The Copy of Identity card of applicant exhibiting him as
Govt. teacher is being filed herewith and marked as Annexure No. 5, to this affidavit.
16.
That applicant has nothing to do with the
committee of Management Gopal Shankar Janak Dulari Junior High School, Sakraur,
Paraspur, Gonda, which is purely a private school, thus giving of 26 lacs
within span of 15 years is completely unbelievable.
17.
That a complaint was made by applicant against
working of husband of complainant namely Ashok Man in relation to his forged
appointment in Balak Bhagwan Laghu Madhyamik Vidyalaya, Vishunpur, Sangam
Bhattpurwa, Shiksha Kshetra Itiyathok, District Gonda on 10.08.2022 by
submitting applications before District Magistrate, Gonda and District Basic
Education Officer, Gonda respectively, which made complainant and her husband
annoyed, consequently the impugned First Information Report had seen the light
of the day as a counter-blast/in retaliation to the application filed by
applicant. The copy of applications submitted by applicant before District
Magistrate, Gonda and District Basic Education Officer, Gonda are being filed
herewith and marked as Annexure Nos.6
& 7, respectively to this
affidavit.
18.
That the proceedings attended against
applicant is malafide and instituted maliciously by complainant.
19.
That complainant/ prosecutrix was sent for
medical examination at district Hospital Gonda wherein she has denied for
internal medical examination which itself a circumstance indicating possibility
of false implication. The Copy of letter dated 01.09.2022 along with medical
examination report and refusal for medical internal examination by complainant
are collectively being filed herewith and marked as Annexure No.8. to this affidavit.
20.
That the case diary contains a supurdginama of
prosecutrix which reflects it has been taken by one Rahul Pandey. The taking of
supurdginama by Stranger of a married lady speaks foul more over in the back
drop when Rahul Pandey happens to be inimical to the applicant. The Copy of
Supurdginama is being filed herewith and marked as Annexure No.9, to this affidavit.
21.
That the statement of prosecutrix was recorded
U/s 161 Cr.P.C. which has been signed by her being hit by section 162 Cr.P.C.
and same does not inspire confidence. The Copy of Statement of prosecutrix
recorded U/s- 161 Cr.PC is being tied herewith and marked as Annexure No.10, to this affidavit
22.
That statement of prosecutrix was recorded /
164 Cr.P.C. on 08.09.2022 but same is bundle of lies without any corroboration
of material document. The Copy of Statement of prosecutrix recorded U/s 164 CC
is being filed herewith and marked as Annexure
No.11 to this affidavit.
23.
That the statement of husband of Prosecutrix
namely Ashok pal was recorded U/s- 161 Cr.PC. and he has stated that Babita is
not attending the school since 2018 thus the prosecution story as set out in
the First Information Report does not inspire confidence. The typed copy of
statement of Ashok pal recorded U/s-161 Cr.PC is being filed herewith and
marked as Annexure No.12, to this
affidavit.
24.
That during course of investigation
complainant/prosecutrix in order to project herself as principal of Gopal
Shankar Janak Dulari Junior High School, Sakraur, Paraspur, Gonda submitted
letter dated 06.11.2006 having letter no. 8554, allegedly issued from the
office of District Basic Education Officer Gonda as an approval of teaching and
non-teaching staff. The Copy of letter dated 06.11.2006 is being filed herewith
and marked as Annexure No.13, to
this affidavit.
25.
That letter dated 06.11.2006 having letter No.
8554 was subject to verification and vide letter dated 21.12.2022 submitted by
District Basic Education officer Gonda it was informed to Investigating Officer
that letter dated 06.11.2006 is a forged one thus the factum of complainant
being teacher in the school alleged by her giving foundation and cause for
bribe and chance to rape also stands belied. The Copy of letter dated
21.12.2022 submitted by District Basic Education officer Gonda is being filed
herewith and marked as Annexure No.14,
to this affidavit. False
26.
That it is further submitted that in response
to communication dated 30.09.2022 issued by Basic Education Officer Gonda,
Block Education Officer Paraspur District- Gonda vide letter dated 10.10.2022
mentioned that complainant was not employed in Gopal Shankar Janak Dulari
Junior High School, Sakraur, Paraspur, Gonda. The Copy of letter dated
18.10.2022 is being filed herewith and marked as Annexure No. 15, to this affidavit.
27.
That based upon the communication
Investigating Officer and authorities of Basic Education Department
Investigating Officer recorded finding that complainant/prosecutrix was not
employed in Gopal Shankar Janak Dulari Junior High School, Sakraur, Paraspur,
Gonda. The Copy of observation of Investigating Officer as recorded in the case
diary is being filed herewith and marked as Annexure
No.16, to this affidavit.
28.
That during course of investigation petitioner
challenged the First Information Report No. 224 of 2022, by means of Criminal
Misc. Writ Petition No. 724 of 2022 and this Hon'ble Court stayed the arrest of
petitioner vide order dated 28.09.2022. The Copy of order dated 28.09.2022 is
being filed herewith and marked as Annexure
No.17, to this affidavit.
29.
That the applicant had preferred Application
U/S 482 No.2980 of 2023 which was disposed of vide order dated 29.03.2023
granting leave to the applicant to avail the benefit of the Judgement/order of
the Hon’ble Apex Court in Satendra Kumar Antil v. Central Bureau of
Investigation. The photo copy of order dated 29.03.2023 is being filed herewith
and marked as Annesure No.18 to this
affidavit.
30.
That petitioner is Physically Challenged
person. The Copy of Medical Certificate is being filed herewith and marked as Annexure No.19, to this affidavit
31.
That if entire prosecution story coupled with
material surfaced during investigation is evaluated on its face value it
emerges as a glaring example of false implication where prosecution story stood
demolished by conduct and material put forth by prosecutrix herself.
32.
That during course of investigation, the
arrest of applicant was stayed by Hon'ble High Court and the applicant rendered
full cooperation during investigation, as such, there would be no fruitful
purpose in sending the applicant behind bars as neither any custodial
interrogation is warranted nor any recovery is to be affected and applicant
undertake to render full cooperation during trial, thus he may be admitted to
anticipatory bail by this Hon'ble Court, in view of mandate of Hon'ble Supreme
Court in the case Aman Preet Singh Vs. CBI through Director reported in 2021
(4) J.L.C. 322.
33.
That the present anticipatory bail application
is maintainable even after filing of charge sheet in view of dictum of Hon'ble
High Court in the case of Adil Versus State of U.P. passed in Crl. Misc.
Anticipatory Bail Application U/s- 438 Cr.P.C. No. 8285 of 2020 and five judges
bench of Hon'ble Apex Court in the case of Sushila Agarwal Versus State (N.C.T.
of Delhi) reported in 2020 SCC Online, SC 98, thus the present anticipatory
bail application is being maintained.
34.
That the applicant is Govt. Teacher and instant
criminal proceedings have been lodged to injure his reputation and wreak
vengeances as the charges are imaginary and flimsy and are unfounded, more so
applicant is having permanent abode and there is no chance of fleeing away from
the process of law and he further undertakes to cooperate in the trial, if
admitted on anticipatory bail.
35.
That in view of totality of circumstances
having regard to the nature of allegation and having no chance of fleeing away
from process of law, he may be admitted to anticipatory bail during course of
trial, for which applicant is ready to file reliable sureties and bond to the
satisfaction of this Hon'ble Court.
36. That in view of aforesaid facts, reasons and circumstances, this Hon'ble Court may be pleased to admit the applicant/deponent on anticipatory bail in Case Crime No. 224/2022, U/s- 376, 328, 504, 506,420 IPC Police Station Paraspur, District Gonda, during the pendency of trial, in the interest of justice.
Lucknow
Dated:
Deponent
Verification
I, the above-named deponent, do hereby
verify that the contents of paragraphs 1 to ……… of this affidavit are true to
my personal knowledge and those of paras ……………….are believe to be true on the
basis of record and those of ………are believed to be true on the basis of legal
advice. Nothing material has been concealed.
So,
help me God.
Lucknow:
Dated:
- Deponent
I identify the above-named deponent who
has put his signature/L.T.I. before me on the basis of record produced by him
in the above noted case.
Advocate
Solemnly affirmed before me on
…/…./2023 at A.M./P.M. by Sri Bhawani Prasad the deponent who is identified by Sri Vinod Kumar Pandey
Advocate, High Court, Lucknow Bench, Lucknow.
I have satisfied myself by examining
the deponent that he understands the contents of the affidavit which are read
over and explained to him by me.
Oath
Commissioner
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