Neutral Citation No. - 2025:AHC-LKO:25510 Court No. - 13 Case :- CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION U/S 482 BNSS No. - 382 of 2025 Applicant :- Durgesh Kumar Singh Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. Counsel for Applicant :- Ripu Daman Shahi,Arun Pratap Singh,Saurabh Singh Counsel for Opposite Party :- G.A. Hon'ble Manish Mathur,J. 1. Heard learned counsel for applicant and learned Additional Government Advocate appearing on behalf of opposite party no.1 while power on behalf of informant has been filed by Mr. Amit Kumar Singh and Mr. Rajendra Pratap Singh, Advocates, which is taken on record. 2. First Anticipatory Bail Application has been filed with regard to Case Crime no.0334 of 2024 under Sections 352, 351(2),3(5) and 109 of BNS, 2023, P.S. Bakshi Ka Talab, District Lucknow. 3. As per contents of first information report, the incident is said to have taken place on 06.11.2024 at about 12.30 p.m. when co- accused Manoj Kumar SIngh is said to have attempted to fire upon informant but upon failure of pistol to fire, allegedly hit informant on his head with the pistol butt causing serious injuries. 4. Learned Additional Government Advocate at the very outset has raised a preliminary objection regarding maintainability of the Anticipatory Bail Application on ground that during rejection of Anticipatory Bail Application before trial court and filing of present Anticipatory Bail Application, charge sheet has been filed which includes Section 3(5) of BNS, 2023 which was not subject matter of rejection of First Anticipatory Bail Application before the trial court. It is therefore submitted that in view of aforesaid aspect, the Applicant is first required to file a fresh Anticipatory Bail Application before trial court and can approach this Court only after its rejection pertaining to Section 3(5) of BNS, 2023. He has placed reliance on judgment rendered by Hon'ble the Supreme Court in Hamida v. Rashid and others, reported in (2008) 1 SCC 474. 5. In response thereto, learned counsel for applicant submits that Section 3(5) of BNS, 2023 has been imputed only as indicating common intention and does not prescribe any separate punishment for which applicant would be directed to first apply for Anticipatory Bail before trial court. It is submitted that since no separate punishment pertaining to Section 3(5) of BNS, 2023 is prescribed, the same can very well can be looked into in the present Anticipatory Bail itself. 6. Upon consideration of submissions advanced by learned counsel for the parties, it is evident from a perusal of provisions of Section 482 BNSS, the primary concept for maintainability of anticipatory bail is apprehension of arrest. In the present case, it is evident that First Anticipatory Bail pertaining to present Case Crime no.0334 of 2024 was presented under under Sections 352, 351(2) and 109 of BNS, 2023 which was rejected by Sessions Court on 29.11.2024. Subsequently charge sheet has been filed adding Section 3(5) of BNS, 2023 (relatable to Section 34 I.PC.). 7. A perusal of aforesaid Section also indicates that it pertains to indication of common intention without any separate punishment being prescribed therefor. The pertinent Sections for which punishment is prescribed were already indicated in First Anticipatory Bail Application before trial court and have been rejected. In such circumstances, in the considered opinion of this Court, the present Anticipatory Bail Application would be maintainable since the main Sections for which punishment is prescribed, anticipatory bail has already been sought and rejected. 8. So far as judgment of Hon'ble the Supreme Court in Hamida(supra) is concerned, a perusal of the same will clearly indicate that the procedure as submitted by learned Additional Government Advocate is required to be followed in the case of Regular Bail and petitions filed under Section 482 Cr.P.C. but are not attracted in the case of Anticipatory Bail Application which can be filed before this Court at the first instance itself. 9. In view thereof, the preliminary objection raised by learned Additional Government Advocate is hereby rejected and the Anticipatory Bail Application is held to be maintainable. 10. Considering aforesaid, learned counsel for applicant is granted liberty to amend the memorandum of Anticipatory Bail Application to incorporate Section 3(5) of BNS, 2023 during course of the day. 11. On merits of the matter, learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him which would be evident from a perusal of first information report itself in which the main role of causing injuries upon informant has been attributed to co-accused Manol Kumar Singh with the only role attributed to applicant is of being present at the site. It is submitted that applicant does not have any previous criminal history and has cooperated during course of investigation. 12. Learned Additional Government Advocate as well as learned counsel for informant have opposed the anticipatory bail with submission that inclusion of Section 3(5) of BNS, 2023 clearly indicates the complicity of applicant in the charges levelled against him. It is however admitted that applicant does not have any previous criminal history and has cooperated during course of investigation. Learned counsel for informant submitted that applicant in fact is the prime instigator of attempt upon informant by co-accused and Bail Cancellation with regard to co-accused Manoj Kumar Singh has also been filed, which is still pending consideration. 13. Upon consideration of submissions advanced by learned counsel for the parties and perusal of material on record, prima facie, it appears from a perusal of F.I.R. that main accusation with regard to having caused injuries upon informant has been attributed to co-accused Manoj Kumar Singh who has already been enlarged on bail by Sessions Court in Bail Application no.2642 of 2025. There does not appear to be any active role indicated to applicant of having caused any injuries to informant. It is also admitted that applicant has cooperated during course of investigation. Thus, in view of law laid down by Hon'ble the Supreme Court in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1, it would be appropriate to grant anticipatory bail to applicant under Section 438 Cr.P.C./482 BNNS. 14. In view of the above, it is provided that in the event of arrest, applicant Durgesh Kumar Singh shall be released on anticipatory bail in aforesaid Case Crime number on his/her furnishing a personal bond with two sureties each in the like amount to the satisfaction of court concerned with the following conditions:- (i) 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 tamper with the evidence; (ii) The applicant shall not leave India without the previous permission of the court; (iii)The applicant shall not pressurize/ intimidate the prosecution witness; (iv)The applicant shall appear before the trial court on each date fixed unless personal presence is exempted; (v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail; Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed. 15. It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses. 16. The application stands disposed of. Order Date :- 2.5.2025 kvg/- Digitally signed by :- GIREESAN KV High Court of Judicature at Allahabad, Lucknow Bench