Allahabad High Court

HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. Heard learned counsel for the applicant, learned AGA and perused the material available on record.

2. This application for anticipatory bail has been filed by applicant- Nitin Chaudhary Alias Nitin Kumar in connection with Case Crime No. 0036 of 2023 under sections 376D, 506 IPC and 67 I.T. Act, P.S. Thakurdwara, District- Moradabad.

3. In the instant case the accused appellant along with some other co-accused persons was alleged to commit gang rape with the victim of this case. It was further alleged that some obscene videos and photograph were also procured and on the basis of which the present accused persons along with other co- accused persons started blackmailing the prosecutrix and was committed gang rape with her, wherein the present accused applicant was an active member.

4. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Charge sheet in the matter has been submitted. It is further submitted that the prosecution case is a bundle of false facts. In the statement of victim under Section 161 and 164 Cr.P.C. contrary facts are found and several improvements in the aforesaid statements have been made by the victim. It is also submitted that co-accused Anuj Sirohi @ Himanshu Sirohi, who has been alleged the same role in the commission of the crime has already been granted anticipatory bail by co-ordinate Bench of this Court in Cr. Misc. Anticipatory Bail Application U/S 482 BNSS No. 3572 of 2025 by order dated 9.9.2025. It is also submitted that the present accused applicant was granted anticipatory bail till the submission of the police report and during investigation the present accused has been cooperative with the I.O. of the case. It is further submitted that the present accused applicant has a criminal history of one solitary case. It is next submitted that the statement of prosecutrix under Section 164 Cr.P.C. indicates that it might be a case of consenting party. It is further submitted that the mobile phones of the accused applicant were also sent to FSL and the report thereof has been submitted by the State counsel by way of a supplementary affidavit and the prosecution does not get any help from the said report. It is further submitted that since the charge sheet in this matter has been submitted no custodial interrogation of the accused applicant is needed to the I.O. In case applicant is granted 2 NABAIL No. 7911 of 2025 anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

5. Per contra, learned A.G.A. has opposed the prayer for anticipatory bail but however, he could not dispute this factual aspect of the matter that the FSL report does not provide any help to the prosecution and the co-accused Anuj Sirohi @ Himanshu Sirohi having identical role has been granted anticipatory bail.

6. Although the charge sheet has been submitted in this matter but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

7. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

8. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

9. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex Court has held that : "11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87 Cr.P.C that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

12. So far as the present case is concerned and the general principles under Section 170Cr.P.C, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

10. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without 3 NABAIL No. 7911 of 2025 expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till conclusion of trial in the matter.

11. The anticipatory bail application is allowed accordingly.

12. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the 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 to any police officer or tamper with the evidence. ii. The applicant shall not pressurize/ intimidate the prosecution witness. iii. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. iv. The applicant shall not leave India without prior permission of the Court and if he has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.

13. In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law. November 3, 2025 Fhd (Nalin Kumar Srivastava,J.)

HON'BLE NALIN KUMAR SRIVASTAVA, J.

1. Heard learned counsel for the applicant, learned AGA and perused the material available on record.

2. This application for anticipatory bail has been filed by applicant- Nitin Chaudhary Alias Nitin Kumar in connection with Case Crime No. 0036 of 2023 under sections 376D, 506 IPC and 67 I.T. Act, P.S. Thakurdwara, District- Moradabad.

3. In the instant case the accused appellant along with some other co-accused persons was alleged to commit gang rape with the victim of this case. It was further alleged that some obscene videos and photograph were also procured and on the basis of which the present accused persons along with other co- accused persons started blackmailing the prosecutrix and was committed gang rape with her, wherein the present accused applicant was an active member.

4. It has been submitted by the learned counsel for the applicant that applicant is innocent and he has apprehension of arrest in the above-mentioned case, whereas there is no credible evidence against him. Allegations levelled against the applicant are false. Charge sheet in the matter has been submitted. It is further submitted that the prosecution case is a bundle of false facts. In the statement of victim under Section 161 and 164 Cr.P.C. contrary facts are found and several improvements in the aforesaid statements have been made by the victim. It is also submitted that co-accused Anuj Sirohi @ Himanshu Sirohi, who has been alleged the same role in the commission of the crime has already been granted anticipatory bail by co-ordinate Bench of this Court in Cr. Misc. Anticipatory Bail Application U/S 482 BNSS No. 3572 of 2025 by order dated 9.9.2025. It is also submitted that the present accused applicant was granted anticipatory bail till the submission of the police report and during investigation the present accused has been cooperative with the I.O. of the case. It is further submitted that the present accused applicant has a criminal history of one solitary case. It is next submitted that the statement of prosecutrix under Section 164 Cr.P.C. indicates that it might be a case of consenting party. It is further submitted that the mobile phones of the accused applicant were also sent to FSL and the report thereof has been submitted by the State counsel by way of a supplementary affidavit and the prosecution does not get any help from the said report. It is further submitted that since the charge sheet in this matter has been submitted no custodial interrogation of the accused applicant is needed to the I.O. In case applicant is granted 2 NABAIL No. 7911 of 2025 anticipatory bail, he will not misuse the liberty of bail and would obey all conditions of bail.

5. Per contra, learned A.G.A. has opposed the prayer for anticipatory bail but however, he could not dispute this factual aspect of the matter that the FSL report does not provide any help to the prosecution and the co-accused Anuj Sirohi @ Himanshu Sirohi having identical role has been granted anticipatory bail.

6. Although the charge sheet has been submitted in this matter but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

7. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

8. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, llikelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

9. In Aman Preet Singh v. CBI, (2022) 13 SCC 764, the Hon'ble Apex Court has held that : "11. A reading of the aforesaid shows that it is the guiding principle for a Magistrate while exercising powers under Section 170CrPC which had been set out. The Magistrate or the Court empowered to take cognizance or try the accused has to accept the charge-sheet forthwith and proceed in accordance with the procedure laid down under Section 173CrPC. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87 Cr.P.C that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in sub-para (iii) above by the High Court are in the nature of caution.

12. So far as the present case is concerned and the general principles under Section 170Cr.P.C, the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody are itself sufficient to entitle him to be released on bail. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

10. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without 3 NABAIL No. 7911 of 2025 expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicant till conclusion of trial in the matter.

11. The anticipatory bail application is allowed accordingly.

12. In the event of arrest of the applicant in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the 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 to any police officer or tamper with the evidence. ii. The applicant shall not pressurize/ intimidate the prosecution witness. iii. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. iv. The applicant shall not leave India without prior permission of the Court and if he has passport, the same shall be deposited by her before the S.S.P./S.P. concerned.

13. In case of breach of any of the above conditions, the Investigating Officer shall be at liberty to file appropriate application for cancellation of anticipatory bail of the applicant in accordance with law. November 3, 2025 Fhd (Nalin Kumar Srivastava,J.)