High Court

3. Heard Shri Ajeet Singh, learned State counsel and perused the record.

4. By means of this application, the applicant is seeking anticipatory bail in Case Crime No.395 of 2009 under Sections 363, 366 and 376 I.P.C., Police Station Kamrauli, District Amethi.

5. The aforesaid case has been registered on the basis of an F.I.R. lodged on 08.09.2009 against Ramesh Kumar, stating that the named accused had enticed away the informant's daughter aged about 15 years. The informant himself caught hold of the named accused on

08.09.2009 and took him to the police station. Applicant is wife of the named accused Ramesh Kumar. In the statement of the victim, she stated that she had gone with the named accused to Sultanpur. In the statement given under Section 164 Cr.P.C., the victim stated that the applicant was also present in the house where the named accused has taken her, thereafter the applicant was also implicated in the present case.

6. The anticipatory bail application of the applicant was rejected by the Sessions Judge, Sultanpur by means of an order dated 03.09.2024 by holding that as per the amendment made to Section 438 Cr.P.C. in the State of Uttar Pradesh, Section 438 Cr.P.C. would not apply to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB and 376-E.

7. Section 438(6) Cr.P.C., as it applies to the State of Uttar Pradesh, provides as follows:- "(6) Provisions of this section shall not be applicable,- (a) to the offences arising out of,- (i) the Unlawful Activities (Prevention) Act, 1967; (ii) the Narcotic Drugs and Psychotropic Substances Act, 1985; (iii) the Official Secret Act, 1923; (iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. (b) in the offences, in which death sentence can be awarded."

8. A bare perusal of Section 438 (6) (b) Cr.P.C. indicates that the provisions of Section 438 Cr.P.C. was not applied in case of offences where death sentence can be awarded. Death sentence can only be awarded for offences under Section 376-AA, 376-AB, 376-DA, 376- DB and 376-E. The applicant is a lady and she has been charged for commission of offence under Section 363, 366 and 376 I.P.C. There is no allegation of commission of any offence under Sections 376-AA, 376-AB, 376-DA, 376-DB and 376-E, therefore, the Sessions Judge concerned erred in rejecting the anticipatory bail application of the applicant as not maintainable. An application for anticipatory bail under Sections 363, 366 and 376 I.P.C. is maintainable.

9. The applicant was granted interim anticipatory bail by means of the following order passed on 22.10.2024:- "1. Heard Shri Ravindra Dwivedi, learned counsel for the applicant and Shri Vinod Gupta, learned A.G.A.-I for the State.

2. By means of this anticipatory bail application, the present applicant has prayed for grant of anticipatory bail in Case Crime No.0395 of 2009, under Sections 363, 366 & 376 I.P.C., Police Station - Kamrauli, District – Amethi.

3. Issue notice to opposite party No.2 returnable at an early date. Steps to be taken within a week. Office to proceed accordingly.

4. The precise contention of the learned counsel for the applicant is that present applicant has been falsely implicated as she has not committed any offence as alleged. Attention has been drawn towards Annexure No.2 which is the F.I.R., wherein the present applicant is not named, though the sole accused is her husband, namely, Ramesh Kumar. Annexure No.4 is a bail order dated 25.03.2010, passed in Bail Application No.2199 of 2010, whereby this Court granted bail to the sole accused Ramesh Kumar. Annexure No.5 is an order dated 10.05.2010, passed by Division Bench of this Court in Misc. Bench No.4267 of 2010, whereby interim protection was given to the petitioner. Annexure No.6 is an order dated 30.11.2011, passed in Case Under Section 482/378/407 No.5235 of 2011, whereby this Court stayed further proceedings pending before the trial court in respect of present applicant. By means of an order dated 28.02.2019, aforesaid petition was disposed of giving liberty to the petitioner to file discharge application before the learned trial court. Pursuant to the aforesaid order, petitioner filed discharge application before the court concerned.

5. Learned counsel for the applicant has stated that in the Case Crime Number in question the trial bearing Sessions Trial No.76 of 2010 "State Vs. Ramesh Kumar" has been concluded on 08.10.2010, whereby the learned trial court acquitted the main accused Ramesh Kumar.

6. As per learned counsel, the petitioner has been implicated in the present case during investigation, though no role of the present applicant has been indicated or referred to in the acquittal order dated 08.10.2010. Besides, Annexure No.9 is a statement of the prosecutrix recorded before the learned trial court whereby she has been cross-examined by learned trial court and she has not leveled any allegation against the present applicant. As a matter of fact, she has not leveled any allegation against the main accused also, therefore, he has been acquitted. So as to explain the alleged role of the present applicant, learned counsel has drawn attention of the court towards Annexure No.5, which is an order dated 10.05.2010 of this Court wherein the statement of the prosecutrix under Section 164 Cr.P.C. has been perused which indicates that no specific allegation against the present applicant was leveled, except the fact that she was present in the house where the husband of the present applicant committed rape with the prosecutrix. Learned counsel has stated that when the entire story of rape could not be established beyond all reasonable doubts, then there is no purpose to prosecute the applicant in the same case crime.

7. Learned A.G.A. has opposed the aforesaid application referring the order of High Court of Karnataka at Bengluru (Ramesh Vs. State) Criminal Petition No.9975 of 2021, decided on 21.10.2022, to submit that when the accused/applicant has already approached the learned trial court by filing an application pursuant to the order of the High Court she may not file an anticipatory bail application, rather she should file an application under Section 439 Cr.P.C.

8. Having heard learned counsel for the parties and having perused the material available on record, this is a peculiar case where the present applicant, who is a lady, is not an accused in the F.I.R. and the main accused, who is husband of the applicant, has been acquitted by the learned trial court and no allegation of any kind whatsoever has been leveled against the present applicant by the prosecutrix at any stage till conclusion of trial, therefore, I find it an appropriate that liberty of the present applicant may be protected.

9. The present applicant shall appear/surrender before the learned trial court within three weeks from today and shall file her personal bond and two sureties to the satisfaction of the learned trial court and learned trial court shall accept the sureties and bond of the applicant and shall release her to participate in proceedings without taking her into judicial custody. Thereafter, the present applicant may participate in the proceedings and may file appropriate application before the learned trial court apprising aforesaid facts and circumstances and orders passed by the learned trial court and this court and the learned trial court may pass appropriate orders strictly in accordance with law.

10. It is made clear that if the present applicant does not appear/surrender before the learned trial court concerned in furtherance of the aforesaid order and does not participate in the proceedings or misuses the liberty of interim anticipatory bail order, the learned trial court concerned may pass any appropriate coercive order against her strictly in accordance with law.

11. List this case in the week commencing 9th December, 2024, within top 10 cases."

10. The State has filed a counter affidavit annexing therewith copies of statements recorded by the trial Court. The victim has not supported the prosecution case before the trial Court.

11. The informant has not filed any counter affidavit before us.

12. Having considered the aforesaid facts and circumstances of the case, there is no reason for this Court to take a view different from the one taken at the time of grant of interim anticipatory bail vide order dated 22.10.2024. Accordingly, the interim anticipatory bail granted to the applicant by means of an order dated 22.10.2024 is made absolute and this anticipatory bail application stands allowed in terms of the aforesaid interim order. Order Date :- 21.3.2025 Gurpreet Singh [Subhash Vidyarthi,J.]

3. Heard Shri Ajeet Singh, learned State counsel and perused the record.

4. By means of this application, the applicant is seeking anticipatory bail in Case Crime No.395 of 2009 under Sections 363, 366 and 376 I.P.C., Police Station Kamrauli, District Amethi.

5. The aforesaid case has been registered on the basis of an F.I.R. lodged on 08.09.2009 against Ramesh Kumar, stating that the named accused had enticed away the informant's daughter aged about 15 years. The informant himself caught hold of the named accused on

08.09.2009 and took him to the police station. Applicant is wife of the named accused Ramesh Kumar. In the statement of the victim, she stated that she had gone with the named accused to Sultanpur. In the statement given under Section 164 Cr.P.C., the victim stated that the applicant was also present in the house where the named accused has taken her, thereafter the applicant was also implicated in the present case.

6. The anticipatory bail application of the applicant was rejected by the Sessions Judge, Sultanpur by means of an order dated 03.09.2024 by holding that as per the amendment made to Section 438 Cr.P.C. in the State of Uttar Pradesh, Section 438 Cr.P.C. would not apply to offences under Sections 376, 376-A, 376-AB, 376-B, 376-C, 376-D, 376-DA, 376-DB and 376-E.

7. Section 438(6) Cr.P.C., as it applies to the State of Uttar Pradesh, provides as follows:- "(6) Provisions of this section shall not be applicable,- (a) to the offences arising out of,- (i) the Unlawful Activities (Prevention) Act, 1967; (ii) the Narcotic Drugs and Psychotropic Substances Act, 1985; (iii) the Official Secret Act, 1923; (iv) the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986. (b) in the offences, in which death sentence can be awarded."

8. A bare perusal of Section 438 (6) (b) Cr.P.C. indicates that the provisions of Section 438 Cr.P.C. was not applied in case of offences where death sentence can be awarded. Death sentence can only be awarded for offences under Section 376-AA, 376-AB, 376-DA, 376- DB and 376-E. The applicant is a lady and she has been charged for commission of offence under Section 363, 366 and 376 I.P.C. There is no allegation of commission of any offence under Sections 376-AA, 376-AB, 376-DA, 376-DB and 376-E, therefore, the Sessions Judge concerned erred in rejecting the anticipatory bail application of the applicant as not maintainable. An application for anticipatory bail under Sections 363, 366 and 376 I.P.C. is maintainable.

9. The applicant was granted interim anticipatory bail by means of the following order passed on 22.10.2024:- "1. Heard Shri Ravindra Dwivedi, learned counsel for the applicant and Shri Vinod Gupta, learned A.G.A.-I for the State.

2. By means of this anticipatory bail application, the present applicant has prayed for grant of anticipatory bail in Case Crime No.0395 of 2009, under Sections 363, 366 & 376 I.P.C., Police Station - Kamrauli, District – Amethi.

3. Issue notice to opposite party No.2 returnable at an early date. Steps to be taken within a week. Office to proceed accordingly.

4. The precise contention of the learned counsel for the applicant is that present applicant has been falsely implicated as she has not committed any offence as alleged. Attention has been drawn towards Annexure No.2 which is the F.I.R., wherein the present applicant is not named, though the sole accused is her husband, namely, Ramesh Kumar. Annexure No.4 is a bail order dated 25.03.2010, passed in Bail Application No.2199 of 2010, whereby this Court granted bail to the sole accused Ramesh Kumar. Annexure No.5 is an order dated 10.05.2010, passed by Division Bench of this Court in Misc. Bench No.4267 of 2010, whereby interim protection was given to the petitioner. Annexure No.6 is an order dated 30.11.2011, passed in Case Under Section 482/378/407 No.5235 of 2011, whereby this Court stayed further proceedings pending before the trial court in respect of present applicant. By means of an order dated 28.02.2019, aforesaid petition was disposed of giving liberty to the petitioner to file discharge application before the learned trial court. Pursuant to the aforesaid order, petitioner filed discharge application before the court concerned.

5. Learned counsel for the applicant has stated that in the Case Crime Number in question the trial bearing Sessions Trial No.76 of 2010 "State Vs. Ramesh Kumar" has been concluded on 08.10.2010, whereby the learned trial court acquitted the main accused Ramesh Kumar.

6. As per learned counsel, the petitioner has been implicated in the present case during investigation, though no role of the present applicant has been indicated or referred to in the acquittal order dated 08.10.2010. Besides, Annexure No.9 is a statement of the prosecutrix recorded before the learned trial court whereby she has been cross-examined by learned trial court and she has not leveled any allegation against the present applicant. As a matter of fact, she has not leveled any allegation against the main accused also, therefore, he has been acquitted. So as to explain the alleged role of the present applicant, learned counsel has drawn attention of the court towards Annexure No.5, which is an order dated 10.05.2010 of this Court wherein the statement of the prosecutrix under Section 164 Cr.P.C. has been perused which indicates that no specific allegation against the present applicant was leveled, except the fact that she was present in the house where the husband of the present applicant committed rape with the prosecutrix. Learned counsel has stated that when the entire story of rape could not be established beyond all reasonable doubts, then there is no purpose to prosecute the applicant in the same case crime.

7. Learned A.G.A. has opposed the aforesaid application referring the order of High Court of Karnataka at Bengluru (Ramesh Vs. State) Criminal Petition No.9975 of 2021, decided on 21.10.2022, to submit that when the accused/applicant has already approached the learned trial court by filing an application pursuant to the order of the High Court she may not file an anticipatory bail application, rather she should file an application under Section 439 Cr.P.C.

8. Having heard learned counsel for the parties and having perused the material available on record, this is a peculiar case where the present applicant, who is a lady, is not an accused in the F.I.R. and the main accused, who is husband of the applicant, has been acquitted by the learned trial court and no allegation of any kind whatsoever has been leveled against the present applicant by the prosecutrix at any stage till conclusion of trial, therefore, I find it an appropriate that liberty of the present applicant may be protected.

9. The present applicant shall appear/surrender before the learned trial court within three weeks from today and shall file her personal bond and two sureties to the satisfaction of the learned trial court and learned trial court shall accept the sureties and bond of the applicant and shall release her to participate in proceedings without taking her into judicial custody. Thereafter, the present applicant may participate in the proceedings and may file appropriate application before the learned trial court apprising aforesaid facts and circumstances and orders passed by the learned trial court and this court and the learned trial court may pass appropriate orders strictly in accordance with law.

10. It is made clear that if the present applicant does not appear/surrender before the learned trial court concerned in furtherance of the aforesaid order and does not participate in the proceedings or misuses the liberty of interim anticipatory bail order, the learned trial court concerned may pass any appropriate coercive order against her strictly in accordance with law.

11. List this case in the week commencing 9th December, 2024, within top 10 cases."

10. The State has filed a counter affidavit annexing therewith copies of statements recorded by the trial Court. The victim has not supported the prosecution case before the trial Court.

11. The informant has not filed any counter affidavit before us.

12. Having considered the aforesaid facts and circumstances of the case, there is no reason for this Court to take a view different from the one taken at the time of grant of interim anticipatory bail vide order dated 22.10.2024. Accordingly, the interim anticipatory bail granted to the applicant by means of an order dated 22.10.2024 is made absolute and this anticipatory bail application stands allowed in terms of the aforesaid interim order. Order Date :- 21.3.2025 Gurpreet Singh [Subhash Vidyarthi,J.]